When several Republican-run state governments decided to go after President Obama’s immigration policy, they were selective in where to file the case. The goal was simple: find the most reflexively anti-immigration ideologue they could find.
The judge-shopping scheme worked like a charm when U.S. District Judge Andrew S. Hanen, the Republicans’ “dream judge,” got the case and made it painfully obvious that he was eager to undermine the White House. The outcome was a foregone conclusion; it was a matter of “when,” not “if.”
And so, late last night, Hanen blocked the Obama administration’s policy, preventing federal officials from implementing “any and all aspects” of the president’s executive actions protecting millions of immigrants from deportation.
The preliminary injunction applies to the Deferred Action for Parents of Americans and Lawful Permanent residents, better known as DAPA, and expansions to the Deferred Action for Childhood Arrivals, both of which Obama announced in November. The policy, part of which was set to go into effect on Wednesday, would grant work permits and defer deportation of undocumented immigrant parents of U.S. citizens who’ve been living in the U.S. since 2010.
The timing is important. As Ian Millhiser explained the decision “came less than two days before the federal government is scheduled to start accepting applications from immigrants seeking to benefit from the new policy,” which in turn “raises a cloud of uncertainty over the millions of immigrants expecting to seek relief under the policy.”
So what happens now?
The Justice Department will, of course, immediately appeal, and by appearances, the administration’s attorneys are quite optimistic. The entire case is highly dubious, the plaintiffs almost certainly don’t have standing, and had the matter been considered by a less cartoonish judge, there wouldn’t be an injunction.
The expectation is that the 5th Circuit Court of Appeals will be more responsible and reverse last night’s order when the appellate bench hears the case in a few weeks.
In the meantime, however, a federal program that was supposed to begin accepting applications tomorrow is on hold – because a hand-picked Republican judge says so.
If the 5th Circuit issues a stay, the program will begin anew, but as Dara Lind explained overnight, the ruling itself may scare away the families Obama’s policy is intended to help.
There’s going to be continued legal wrangling over whether or not Hanen’s ruling is upheld, and what the final outcome of the case is (see below for more on that). But even if this ruling is quickly overturned, and the administration is allowed to move forward with granting deferred action, the success of the relief programs might be in jeopardy.When the administration created the first deferred-action program in 2012, for young unauthorized immigrants, they discovered the success of the program relied on people signing up — and on the ground, organizers learned that finding eligible immigrants and getting them to apply was the hardest part. Now, community groups are trying to educate a much larger, more diffuse immigrant population about the new deferred-action programs, and persuade them that it’s safe to apply. But news and misinformation about the lawsuit is spreading confusion and fear among the very people these groups are trying to reach.Organizers are worried about a “chilling effect”: by the time applications do open for deferred action, immigrants will have been intimidated out of applying, because they won’t believe the program is safe or permanent.
All of this, meanwhile, comes against the backdrop of a fierce fight on Capitol Hill, where Republicans are threatening to shut down much of the Department of Homeland Security unless Democrats agree to dismantle the White House’s immigration policy. The deadline for action is next Friday.
It’s possible that GOP leaders, desperate to get out of the mess they created for themselves, will see last night’s ruling as a political way out – House Speaker John Boehner (R-Ohio) and Senate Majority Leader Mitch McConnell (R-Ky.) can effectively tell their members, “We don’t need to push our shutdown scheme anymore; our allies on the courts are advancing our goals for us.”
The trouble is, it’s equally likely GOP leaders will turn to Democrats and say, “See? A right-wing judge agrees with us, so you should give us what we want or we’ll hurt Homeland Security.”
As Greg Sargent put it last week, the “brinkmanship” is poised to “get crazier from here on out.”