Late on February 16, a federal judge in Brownsville, Texas ordered a halt, at least temporarily, to President Obama’s executive actions on immigration, siding with Texas and 25 other states that filed a lawsuit opposing initiatives that would offer protection from deportation (and work permits) to as many as five million undocumented immigrants. The judge did not rule on the legality of the immigration plans but said there was sufficient merit to the challenge to warrant issuing an injunction while the case moves forward. Judge Andrew Hanen, a critic of the administration on immigration policy, found that the states had satisfied the minimum legal requirements to bring their lawsuit.
Specifically, the lawsuit claimed that the President’s immigration orders unilaterally changed federal immigration law, usurping Congress’s exclusive power to legislate, and violated the president’s constitutional duty to “take care” to faithfully execute the laws. Judge Hanen based his temporary injunction on his belief that the Administration, in making such a sweeping change to what current law “mandates,” at the very least failed to comply with the Administrative Procedure Act’s notice and comment provisions.
Some legal scholars have predicted that any order to halt the president’s actions would be quickly suspended by the United States Court of Appeals for the Fifth Circuit in New Orleans.
Interestingly, the mayor of Brownsville was among those who filed friend of the court briefs supporting the Executive Actions. The Administration had argued that the case should be dismissed as meritless.
The immediate impact of the injunction is the likely delay of the expansion of the DACA program, which was to begin on February 18. Other plans that were announced as part of the Executive Action – mostly impacting business-related immigration – already were envisioned to go through the normal APA rulemaking process, and thus should not be impacted by the court’s ruling. For example, final rules on work authorization for spouses of H-1Bs who have begun their green card process can go forward (such rules were expected by the end of January), as can guidelines and rules for expanding the National Interest Waiver category for “inventors, researchers and founders of start-up enterprises” (these too remain on hold).
What happens in the courts is also likely to impact negotiations in Congress on renewed funding of DHS. Congress has been at loggerheads over the Executive Action, and had been holding up DHS’s renewed funding, which rules out February 27, because of the Administration’s plans to offer deportation relief and work authorization to millions of undocumented immigration.