The Obama administration asked a Texas judge to suspend an order that blocked a plan to let as many as 5 million undocumented immigrants stay in the country, warning that the Justice Department will go over his head if he takes too long.
The administration gave U.S. District Judge Andrew Hanen in Brownsville, Texas, until close of business Wednesday to act on his own before it goes directly to an appeals court in a bid to temporarily set aside his order. The move marks an escalation by President Barack Obama, a Democrat, against a coalition of largely Republican-led states that oppose his expanded programs as a form of blanket amnesty for some illegal residents.
If Hanen puts his ruling on hold, federal agents could start processing the undocumented immigrants’ applications to remain and work in the U.S. while 26 states challenge the policy in court.
The states, led by Texas, convinced Hanen that the president and the Department of Homeland Security probably sidestepped federal rules that policy makers must follow to implement new regulations without congressional authorization.
The judge, in a preliminary finding on Feb. 16, said the states would probably succeed in proving the administration had skipped the required steps providing the public a chance to study the new rules and comment before they take effect.
Hanen hasn’t yet weighed the states’ additional complaint that the administration overstepped its constitutional authority by unilaterally altering immigration laws.
“The preliminary injunction was entered at the urging of states that unquestionably lack any authority over the nation’s immigration policies,” the Justice Department said in papers filed Monday in federal court in Brownsville.
Hanen “erroneously” interpreted federal statutes to give states the right to “interfere with federal enforcement discretion in the federal courts,” administration lawyers said. Hanen himself acknowledged the theory “has never been found sufficient” by another court to justify state interference in federal policy-making, the U.S. lawyers said.
Unless Hanen’s opinion is overturned, they said, it “would mark a significant expansion of the powers of the federal judiciary and the states” into areas the White House claims are constitutionally earmarked for the executive branch.
The White House told Hanen it didn’t need to follow the rule-making protocol because the initiative involves revised guidelines, not formal rules, which immigration agents are to follow at their discretion. The administration also claims it has the authority to prioritize federal resources and the enforcement of immigration laws however it sees fit.
Hanen temporarily blocked the deferred-action program on Feb. 16, less than 48 hours before federal agents were to begin processing applications from undocumented workers who’ve been in the U.S. at least five years and have close family ties here. The program provides protection from deportation, work permits and some federal benefits if the immigrants meet certain criteria, including passing a criminal background check.
The Obama administration said it needed to keep that program on track to avoid having to spend more to restart it later. It also disputed Hanen’s finding that the states will be stuck with millions of dollars in costs to provide mandatory services, such as drivers’ licenses, to immigrants who qualify for deferred action.
The White House asked Hanen to consider partially lifting his injunction, so that it doesn’t apply outside of Texas or affect the 24 states that didn’t join the lawsuit. They said Hanen’s order doesn’t address arguments submitted by 12 states and the District of Columbia that they’ll economically benefit from the deferred action program.
About an hour after the U.S. filed its bid to suspend Hanen’s order, the Texas Attorney general’s office sent the judge a letter asserting there’s no need to hurry his decision.
The U.S. has known the states wanted to block the deferred action program since Dec. 4, according to the letter, and should have spoken up sooner if the administration felt there was an emergency need to start the program on Feb. 18, as originally scheduled.
The Obama administration’s odds of getting Hanen’s order suspended on appeal are “close to zero,” Texas Governor Greg Abbott, a Republican, said on Fox News Sunday. Courts grant stays to maintain the status quo, he said. “The status quo is the immigration law passed by Congress, not the immigration law imposed by the president.”
Abbott said the states will take the fight to the U.S. Supreme Court, because they believe the challenge is less about immigration policy than about the president’s “over-reach” of his constitutional authority. He predicted the states will win “unanimously” at the high court.
The case is Texas v. United States, 1:14-cv-00254, U.S. District Court, Southern District of Texas (Brownsville).