Prominent immigration advocates have all but conceded that federal judge Andrew Hanen – a staunch critic of the Obama administration’s immigration policies – will block the president’s executive actions just weeks before the measures are slated to kick in.
Advocacy groups are bracing for Hanen, a U.S. district court judge, to decide this week on a lawsuit that could unravel the president’s unilateral measures to shield as many as 5 million undocumented immigrants from deportation. Texas is leading the charge against the looming immigration actions, bringing together 25 other states in a lawsuit arguing that the president’s actions place a heavy burden on local governments. While scores of experts have said that the states’ legal arguments don’t hold water, it’s the conservative, Bush-appointed judge that has advocates nervous.
“We all think the judge is going to rule in favor of the plaintiffs here. That much is almost assumed at this point,” said Marshall Fitz, vice president of immigration policy at the Center for American Progress. Advocates remain confident that the law is on the administration’s side and that the measures are within Obama’s executive authority, he said, but Judge Hanen’s past opinions on immigration policy suggest he’ll rule against the administration.
Hanen did not mince words in a scathing court opinion in 2013 when he accused the Department of Homeland Security of engaging in a “criminal conspiracy” for reuniting an undocumented child to her mother in the U.S. after she was brought across the southwest border by smugglers. “The DHS, instead of enforcing our border security laws, actually assisted the criminal conspiracy in achieving its illegal goals,” Hanen wrote. “In summary, instead of enforcing the laws of the United States, the government took direct steps to help the individuals who violated it.”
If Hanen decides against the Obama administration, he could block the implementation of the executive measures, which are scheduled to kick in Feb. 18. If that were to happen, the Department of Justice would almost certainly appeal the decision, which would then go to the Fifth Circuit Court of Appeals – yet another conservative-leaning court.
It’s not by chance that Texas is the lead plaintiff in the lawsuit, or that it was filed in the state’s conservative-leaning Brownsville district. In filing the preliminary motions for the lawsuit, then-Attorney General Greg Abbott admitted that Texas was “uniquely qualified” to take on the president’s executive actions. With an unsympathetic judge on the bench, appointed by President George W. Bush in 2002, immigration reform advocates are bracing for the worst.
“This is a classic case of judge shopping,” Fitz said. “That’s unfortunate – that’s not the way that it should be. It will be the height of judicial activism.”
Pro-immigrant groups point out that scores of legal experts, elected officials and law enforcement authorities support President Obama’s executive actions, which would provide a shield from deportation and grant temporary work permits to millions of undocumented immigrants currently living in the United States. Others say the lawsuit’s complaint relies on weak justifications that read more like a political press release than a legal argument.
Some are optimistic that the executive actions will still be implemented this year. The plaintiff states have a high bar in proving that local governments will be harmed by deportation relief for millions of undocumented immigrants. Meanwhile, the White House has remained steadfast in asserting that the president has the discretion to prioritize which people should or should not be deported.
“Presidential use of executive discretion has been pretty consistent in the last 20 or so years,” said Brandon Rottinghaus, associate professor of political science at the University of Houston. “I don’t think the court would overturn that.”
Karen Tumlin, managing attorney at the National Immigration Law Center, hoped the decision will not deter undocumented immigrants from coming forward to take advantage of the executive action once enrollment opens – either in a few weeks or further down the road.
“People have been waiting so long for a chance to come forward and be able to work with authorization and not be looking over their shoulder all day long,” she said. “We’re really trying to send the message that this should be business as usual.”