And the pole is greased.

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California Can Upend Texas Immigration Case

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg View. He was executive editor of the Week. He was previously a national affairs writer for Rolling Stone, a communications consultant and a political media strategist.
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Texas, leading a coalition of 26 red (and reddish) states, got what it wanted from a federal district judge last week: a preliminary injunction halting the Obama administration's Nov. 20 executive action on immigration. But Texas's complaint that it would suffer harm from President Barack Obama's action has opened the door to a powerful rebuttal from states that have a different spin on the immigration plan.

In his Feb. 16 decision, Judge Andrew Hanen narrowly ruled that the Obama administration had side-stepped public comment on its plan and thus hadn't followed federal rule-making protocol. The administration responded in part that the injunction "was entered at the urging of states that unquestionably lack any authority over the nation’s immigration policies."

Texas argued that it had standing to sue because Obama's coddling of undocumented immigrants has caused the state direct harm. It blamed Obama's 2012 relaxation of enforcement against "Dreamers" -- a model for the broader deferral of enforcement against undocumented immigrants that Obama announced in November -- for causing a "humanitarian crisis" in 2014 when children from Central America flooded the border.

Texas maintained that Obama's new executive action would compound the damage, increasing the undocumented population in the plaintiff states by offering "legal inducements" for them to stay and presaging "a new wave of undocumented immigration." In addition, the action would "increase human trafficking" by Mexican drug cartels and others. Oh, and along the way Obama's lawlessness would cost unspecified boatloads of money: Texas cites -- by way of an extrapolation left entirely to the reader's imagination -- some $23 million spent last year by its counties on "indigent health care." (More than one fifth of Texas residents lack health insurance; the state didn't even attempt to connect the county costs to undocumented immigrants.)

Evidence for some claims -- a "new wave" of border crossings, for example -- was nonexistent. Other claims -- an impending increase in drug-cartel trafficking because fewer people on the U.S. side of the border would be under imminent threat of deportation? -- may require a certain ideological predisposition even to comprehend.

Altogether, the complaint reads as if it were cobbled together on the sofa of "Fox & Friends." Based on the avalanche of ill consequences envisioned by Texas, however, the judge found that the state had standing to sue. So Hanen's injunction has halted, for now, Obama's executive action.

QuickTake Swerving Path to Citizenship

But what of the dozen states, including California and New York, that filed a brief in the case claiming that undocumented immigrants create economic benefits when they gain lawful employment? Their brief cites research concluding that "when immigrants are able to work legally -- even for a limited time -- wages increase, workers are encouraged to seek work compatible with their skill level, and workers receive incentive to increase their skills to obtain higher wages."

It's hardly a novel argument; well-funded  research supporting it abounds. Yet if that's the case, then Hanen's injunction is now doing active harm to the economies of states not named Texas, suppressing both incomes and the state tax revenue derived from them. In other words, if Texas can halt Obama's actions on the basis of strong feelings about prospective harm, then other states can now petition to reverse Hanen's injunction on the basis of economic research that his injunction harms them.

Even if you find the Texas arguments valid, the end result is that disparate states perceive disparate effects flowing from Obama's executive action. Why should Texas's claims have more legal validity than California's? That, of course, is one reason why the Supreme Court has made clear that immigration policy is a federal, not a state, prerogative. 

Hanen has given states until next Tuesday to respond to the Obama administration's request that Hanen's order be lifted while the administration appeals to the 5th U.S. Circuit Court of Appeals in New Orleans. There, Obama's lawyers hope to find justices more inclined to California dreamin'.

To contact the author on this story:
Francis Wilkinson at fwilkinson1@bloomberg.net

To contact the editor on this story:
Zara Kessler at zkessler@bloomberg.net