U.S.
District Judge Andrew S. Hanen’s decision to block the Obama plan to
defer deportation for about 5 million immigrants here illegally ignores a
basic principle of government: For better or worse, the executive
branch of government always has discretion as to whether and how to
enforce the law. The judge’s lengthy opinion is wrong as a matter of law
and, worse, is based on xenophobia and stereotypes about immigrants. It
is very likely to be overturned by the U.S. 5th Circuit Court of
Appeals and, if necessary, the Supreme Court.
Every
president must set enforcement priorities on immigration, choosing whom
to prosecute or whom to deport. No administration brings prosecutions
against all who violate the law. Resources make that impossible, and
there are laws on the books that should not be enforced. Nor has any
administration, Democratic or Republican, sought to deport every person
who is illegally in the United States. For humanitarian reasons or
because of foreign policy considerations or for lack of resources, the
government often chooses not to bring deportation actions. In fact, as
recently as three years ago, the Supreme Court in United States vs.
Arizona recognized that an inherent part of executive control over
foreign policy is the ability of the president to choose whether to
bring deportation proceedings.
That
is exactly what President Obama’s executive orders on immigration have
done. He has announced that the federal government will not seek to
deport 600,000 young people who were illegally brought to the U.S. as
children, or the undocumented parents of U.S. citizens and permanent
residents who have resided in the country for at least five years.
Millions of parents would be able to remain with their children because
of this order and not need to live every day in fear of deportation.
The Texas Judge’s Immigration Ruling order to makes several basic legal mistakes. For example, the law
is clear that a federal court has jurisdiction to hear a matter only if
the federal court’s decision would solve the problem. If the court’s
decision would have no effect, it would be nothing but an advisory
opinion, which is prohibited by the Constitution. Thus, the Supreme
Court long has held that a party has standing to sue in federal court
only if a favorable decision would “redress” its injury.
The
lawsuit in Hanen’s court was brought by state governments that object
to the Obama orders, claiming injury by the presence of immigrants here
illegally. But the federal government deports only about 400,000 such
immigrants a year. It is entirely speculative that stopping the
executive orders would have any effect on the states that brought the
suit. In fact, it is unclear what the judge’s order will mean. He cannot
force the Department of Homeland Security to deport anyone.
The
central argument in Hanen’s ruling is that the executive branch must
promulgate a formal rule to defer deportation of these individuals. But
the federal government constantly sets enforcement priorities without a
formal rule. The Justice Department’s policies to not prosecute
possession of small amounts of marijuana or credit card fraud below a
designated dollar level, for example, were not adopted by formal rules.
In
fact, recent presidents, including Republicans, have deferred
deportations without formal rules. In 1987, in response to political
turmoil in El Salvador and Nicaragua, the Reagan administration took
executive action to stop deportations for 200,000 Nicaraguan exiles. In
1990, President George H.W. Bush, post-Tiananmen, stopped deportations
of Chinese students. He kept hundreds of Kuwaiti citizens who were
illegally in the United States from being deported after Saddam Hussein
invaded their nation. In 2001, President George W. Bush limited
deportation of Salvadoran citizens at the request of El Salvador’s
president, and ordered that deportation decisions include consideration
of factors such as whether a mother was nursing or whether the person in
question was a U.S. military veteran.
Judge
Hanen, appointed to the federal bench by George W. Bush, has the
reputation of being especially conservative on immigration issues. That
tone underlies his opinion, especially as he spoke of immigrants being
“terrorists” and “criminals.” What he misses, though, is that the point
of Obama’s executive orders was to set enforcement priorities to focus
deportations on terrorists and criminals and not about breaking up
families.
It
is not surprising that a conservative Republican judge would try to
stop the Obama immigration policy. But it is just the first word and one
unlikely to be sustained on appeal. And, hope the here discussed in
this blog will help in case if you need great help from The American Institute of DUI/DWI Attorneys.
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