Immigrant communities have already been waiting months for President Barack Obama’s executive actions to kick off. Now, they are going to have to wait a little longer.
Despite setbacks, supporters of the immigration actions remain confident that a federal judge’s decision to temporarily block the measures will merely be a bump in the road before as many as 5 million undocumented immigrants are granted deportation protections. The question is not whether the measures will go into effect, groups said Tuesday, but rather, when exactly.
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The first round of applications for the program was scheduled to open up this week. But late Monday night, U.S. District Court Judge Andrew Hanen stymied those plans, issuing a preliminary injunction that temporarily put the sign-up process on hold. With the implementation now delayed, Texas and 25 other states have an opening to pursue a lawsuit to bring down the president’s executive actions — permanently.
Obama said on Tuesday that he disagrees with the judge’s ruling and that the Justice Department would appeal the decision. “I think the law’s on our side and history’s on our side,” he said. “For those now wondering whether or not they should apply, we are going to refer those questions to DHS that’s already begun planning and we’ll be prepared to implement this fully as soon as legal issues resolved.”
The developments are likely to trigger a lengthy legal battle that could stretch out for weeks, even months. The Obama administration is expected to appeal for an emergency stay, which would allow the program to move forward as planned. The conservative-leaning 5th Circuit Court of Appeals would take at least a few weeks to issue that decision. If the appeals court sides with the Obama administration and temporarily allows the enrollment process to open up, it would likely then take several months before the three-judge panel would issue a final ruling on the legality of the executive actions.
In short, even in the best case scenario for the Obama administration, the legal fight could result in dramatic delays for the rollout of the president’s initiatives.
Attorney General Eric Holder said during a Q&A session at the National Press Club that the Justice Department will be reviewing the case and and pressing forward — even if that means taking the issue to the nation’s highest court.
“But we have to look at it for what it is: A decision by a single judge,” Holder said. “I’ve always expected that it will ultimately be decided at a higher court, if not the Supreme Court. I would view this as an interim step.”
Republicans nationwide have led charge against the immigration actions, with efforts to unravel measures currently playing out in both the courts and through Congress. Conservatives argue that Obama acted outside of his executive powers in offering temporary work permits and a shield from deportation to broad swaths of the nation’s undocumented immigrant population. The first phase of actions, originally set to begin Wednesday, expanded on an existing program for young immigrants brought to the U.S. as children, known as DREAMers. The second phase would open up benefits and protections to certain undocumented immigrants who are the parents of U.S.-born children.
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The federal court decision was not unexpected. The Obama administration had anticipated the development, while immigration groups and advocates have crafted contingency plans in the event that the enrollment period would be delayed. Since the measures were first announced last November, groups have helped immigrant communities prepare for the application process and gather the materials needed to qualify. But those undocumented immigrants ready to line up for sign-ups on Wednesday must now wait and see how the situation plays out through the courts.
Department of Homeland Security Secretary Jeh Johnson said in a statement that while he strongly disagrees with Hanen’s decision, immigration officials will not begin accepting applications on Wednesday as expected.
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“The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority,” Johnson said in the statement. “Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts.”
In a conference call with reporters Tuesday, White House Domestic Policy Director Cecilia Munoz said the administration will continue implementing the enforcement priorities outlined by President Obama in November. And while the administration will comply with Hanen’s decision, Munoz stressed that the 2012 DACA program would not be impacted.
“The existing DACA program remains in place, it was not affected by the decision last night,” she said. The “administration is very confident that the executive actions are well within the president’s authority. We expect to prevail legally and will be ready to implement these programs when that happens.”
Monday’s decision brings uncertainty to the fate of the millions of undocumented immigrants who would be eligible under the executive action to seek protection from being deported. That confusion, critics of the lawsuit charge, was exactly the intent of the 26 states that filed the suit.
“The intention is to create confusion and fear in our communities,” Marielena Hincapié, executive director of National Immigration Law Center, said in a press call Tuesday. Advocacy groups scrambled Tuesday to notify immigrant communities that Hanen’s decision was just temporary and that they believe the Obama administration will fight — and ultimately win — the legal battle.
“Our message to our members and to our families that are preparing for deferred action is: Don’t panic, keep preparing,” Debbie Smith, an attorney with the Service Employees International Union, said on the call. “We think this suspension is temporary, it’s not the end.”
Scores of legal experts, elected officials and community groups remain adamant that Obama has legal precedent on his side in determining which undocumented immigrants should be deported, and which shouldn’t. Other experts say the legal arguments presented by the 26 states in the lawsuit are thin. In order to throw out the executive measures, states must prove that the implementation of the actions places a substantial burden on local resources. But in providing millions of people who already live in the United States with the ability to work aboveboard — and, notably, pay taxes — experts said the programs do just the opposite of burdening states.
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Hanen, a President George W. Bush appointee, has gone out of his way to criticize the Obama administration’s policies on immigration. And in his 123-page decision, he pointed to the impact of the executive measures on Texas in particular, finding that the state would likely suffer a significant economic harm as a result of the added expense incurred by granting driver’s licenses to its immigrant population. Hanen also said the Obama administration failed to comply with administrative procedures in approving the program.
“The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country,” Hanen wrote. “Further, the record supports the finding that this lack of enforcement, combined with the country’s high rate of illegal immigration, significantly drains the states’ resources.”
On Capitol Hill, Republicans leaders have vowed to fight “tooth and nail” to bring down the executive actions. Congress is currently at an impasse over legislation to fund the Department of Homeland Security through September — the measure snagged on the GOP’s condition of gutting the president’s immigration actions both past and present. Senate Democrats have blocked the bill and called on their Republican counterparts to introduce a clean version that would provide critical funding for the agency before its resources run dry on Feb. 27. Senate Majority Leader Mitch McConnell, however, said in a statement Tuesday that Republicans will not be backing down.
“This ruling underscores what the President has already acknowledged publicly 22 times,” McConnell said in a statement. “He doesn’t have the authority to take the kinds of actions he once referred to as ‘ignoring the law’ and ‘unwise and unfair.’ Senate Democrats, especially those who’ve voiced opposition to the President’s executive overreach, should end their partisan filibuster of Department of Homeland Security funding.”
Senate Minority Leader Harry Reid for his part said the only reason why the court was involved in the first place was because Republicans blocked comprehensive immigration reform legislation. The immigration debate has raged on for years, but Congress shouldn’t jeopardize homeland security operations while the fight continues, he noted.
“Democrats’ offer to first fund Homeland Security and then debate immigration stands,” Reid said in a statement. “All Republicans have to do is say ‘yes.’”
Amanda Sakuma