Attacks against President Obama’s Immigration Executive Action

On November 20, 2014 immigrants and immigrant advocates shed tears of joy across the nation when President Obama made good on his promise to take Executive Action to fix our broken immigration system. He acted within his delegated authority and created DAPA (Deferred Action for Parental Responsibility), a program for certain parents of U.S. citizen and Legal Permanent Resident children who have lived in the U.S. since at least January 1, 2010.

This newly created program was planned to look and operate like the DACA program (Deferred Action for Childhood Arrivals) that President Obama introduced on June 15, 2012. On the same day that he authorized Deferred Action for the parents, he also extended it for “Dreamers” (students or graduates) who entered the U.S. prior to January 1, 2010 while they were under the age of 16.

Immediately following President Obama’s announcement opponents of the action began to make promises that they would do everything possible to stop the programs before they started. Congress has threatened to “de-fund” U.S. Citizenship and Immigration services (USCIS), and yesterday they passed a bill intending to do just that. However, USCIS’s services are self-funded through fees required for each application, therefore it is unclear exactly how Congress intends to “shut it down.”

The State of Texas joined together with 20+ states to file a lawsuit in federal court claiming that President Obama overstepped his authority. They have asked for a Preliminary Injunction in order to keep these new programs from starting. USCIS will begin accepting application for the new DACA program on February 17, 2015 and DAPA is slated to begin in May of this year.

The federal lawsuit was filed in the Southern District of Texas and the case ended up in Judge Andrew Hanen’s court. Oral arguments were heard today and I attended that hearing which lasted three hours.

First of all, it is important to understand why this case was filed in the Southern District of Texas. The federal courthouse is located in Brownsville, Texas, the southeastern most part of the U.S. The courthouse is literally down the street from the U.S./Mexican border. This particular federal court prosecutes thousands of undocumented individuals each year for crimes ranging from illegal re-entry to drug smuggling and human trafficking. Last year that court presided over a trial for the murder of a Customs and Border Patrol agent. Judge Hanen has seen the bad and the ugly in regards to immigrants. But, as he himself acknowledged today, he has also seen the good as he has presided over oath ceremonies for naturalized citizens.

Was there strategy involved in the filing of the lawsuit in South Texas? Absolutely. It could have been filed in any other district in Texas. Clearly the plaintiffs were looking for an area full of controversy regarding illegal immigration.

This morning Judge Hanen quickly cut to the chase and indicated he’s not interested in debating the pros and cons of immigration reform. He noted that federal court is not a “complaint department” where anyone unhappy with any federal action can bring their complaint.

Judge Hanen’s role in this case is to hear the arguments regarding a specific legal matter and make a ruling. However, before he can even consider the case, he must be convinced that the states have standing to sue the federal government. In order to establish standing, the states must show that they have been (or in this case will be harmed) by the federal action.

Most of the hearing today pertained to arguments related to the issue of standing. The states argue that they will be harmed in the following three ways: 1) direct financial harm; 2) negative impact due to increased services in education, law enforcement, and health care; and 3) negative impact on citizens who may have to compete with more individuals in the legal workforce.

The state explained that DACA and DAPA recipients would be eligible for driver’s licenses. The costs for these licenses are not covered by the fees charged and the states claims that they incur approximately $150 in costs per license. In response, the federal government noted this is a “self-inflicted” harm and the states could choose not to issue driver’s licenses to these individuals. The states counter-argued noting that Arizona tried to do that after the DACA program started in 2012 and the Supreme Court essentially told them they couldn’t discriminate in that way and therefore they were forced to start issuing driver’s licenses. The federal government distinguished that case by suggesting there might be other non-discriminatory ways to deny driver’s licenses.

The federal government questioned the states’ arguments regarding expenses related to health care, law enforcement, and education. Arguably, these expenses are incurred whether or not undocumented individuals are granted work authorization. The states responded by noting that prior to November 20, 2014, there was a strong likelihood that these individuals would leave the states either through deportation or returning home voluntarily. After executive action was announced, there is now an incentive to stay in the U.S. and the states allege that the action encourages future illegal immigration.

The parties also briefly touched on the merits of the lawsuit itself. In order to prevail the States will have to prove that the executive action is unlawful under the Take Care Clause and/or the Administrative Procedures Act. Some of those arguments were brought forth today and if the issue of standing is deciding in favor of the plaintiffs it will be interesting to see how those arguments are developed.

One argument mentioned is what we used to refer to in law school as a “floodgates” argument. In my opinion this argument is always a losing argument. The states would argue that if President Obama’s action is allowed to move forward, any future president could use his action as justification for similar action in whatever area s/he can’t get Congress to act on. An example given was what if a president decided that the tax system is broken and started issuing cards that would enable individuals to pay less or even no taxes. A lot of hypothetical discussion ensued. By this point it was well past lunchtime and my stomach was growling.

Judge Hanen agreed to allow for submission of more legal briefs on the issues, which are due by January 30, 2015. He noted he does have a full caseload and the court is one judge short currently, but he assured the parties he would issue a decision as soon as possible. The states urged a decision before the new DACA program will begin February 17, 2015.

Today’s hearing fascinated the legally trained part of me. The arguments are complex and interesting. However, as an advocate for immigrants, this lawsuit disturbs me. Our immigration system is broken. Congress refuses to work together to fix it. It is simply not possible for our government to deport the estimated 11 million undocumented individuals currently living in the U.S. President Obama used his authority of executive action and prosecutorial discretion to determine that certain individuals who meet the eligibly requirements should not be deported and will receive work authorization for a designated period of time. His decision was right, just, and fair. I don’t believe he overstepped his authority and the programs were well thought out. If an injunction is issued, it will temporarily and possibility even permanently delay undocumented immigrants’ abilities to apply for relief. DACA and DAPA should be allowed to go forward without any further delay.