Technically, the temporary injunction issued by U.S. District Court Judge Andrew Hanen does not address the constitutionality of Obama’s executive order; instead, it finds that the Obama administration did not fulfill the requirements of the Administrative Procedure Act for 90 days of public notice and comment before the change was made.
However, in a long memo released with the injunction, Hanen made it clear that he believes the administration has overreached. As he bluntly puts it, illegal immigrants affected by the program “all fall into a category for removal, and no congressionally enacted statute gives the (Department of Homeland Security) the affirmative power to turn DAPA recipients’ illegal presence into a legal one. … The DHS secretary is not just rewriting the laws; he is creating them from scratch.”
That ruling was not unexpected; Hanen has a history of well-documented exasperation with the federal government over immigration issues, and the 26 states, including Georgia, that filed the suit in effect went judge-shopping by filing the suit in his district. There’s also a strong likelihood that the temporary injunction will be quickly reversed upon appeal to the Fifth Circuit.
But Hanen’s decision is nonetheless a real setback for the Obama administration’s efforts to implement a more compassionate immigration-enforcement policy on its own, without congressional action. At the very least, it means illegal immigrants will be much less confident about coming out of the shadows to participate in a program that may later be overturned, leaving the government with a lot of data with which to trace them.
As Hanen points out, we are in this situation largely because the legislative branch has proved itself unable to and unwilling to legislate on the issue. With more than 10 million illegal immigrants in this country and no practical means available to either remove or legalize them, that inaction has left the executive branch to try to work out an admittedly Rube Goldbergian solution on its own. He believes it has gone too far, and it is a legitimate question.I suspect that in the end, the federal judiciary will probably allow that awkward half-solution to continue. If it does not — if Hanen’s line of thinking carries the day — then we’re back to crisis mode, with serious consequences for an awful lot of people. Maybe, just maybe, that would force Congress to finally do the hard work of legislating and compromise, but I see no sign of such a miracle occurring anytime in the foreseeable future.