Analysis of Injunction Against New Deferred Action

On February 16th, a judge in Texas issued a temporary injunction against parts of the President’s immigration executive action plan, including DAPA and the DACA expansion. This means that they cannot take effect until this court or a higher one eventually rules in favor of the Obama administration or puts a stay on his injunction (which would essentially cancel it). This also means that we had to update our post from February 6th, which talked about the changes’ planned start on the 18th and how to prepare for them. However, the post’s main point is still that the administration was expecting the programs to go on without serious difficulty. It did so knowing about the legal challenges, meaning that it likely viewed them more as political frustration than valid legal analysis. This is an assessment that we share.

Shortly after the initial announcement, a group of Republican Governors and Attorneys General from 26 states got together to file a lawsuit against it. While there are many potential reasons this group of Republicans could have spent so much time fighting the executive action, it is likely not based on a true understanding of economics or the law. (We have written articles on why we think the action is both legal and economical.) So, the fact that they succeeded in at least delaying it may come as an unfortunate surprise for the plan and the millions of people who would benefit from it. However, some analysis will show that this ruling is little cause for concern.

There are two keys to understanding the ruling. The first is the identity of the judge: U.S. District Court Judge Andrew Hanen. This judge is known for calling Obama’s immigration enforcement policy “dangerous and unconscionable” and for saying that his administration “should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws.” He has also taken the opportunity to issue general swipes at U.S. immigration policy in several rulings, even though the cases did not require his opinion on those matters. The second is the nature of the way the case wound up in his lap.

Because their suit is against the federal government, the plaintiffs were able to file it in any U.S. District Court in any of those 26 states. Thus, it should not come as a surprise that they chose to file in Hanen’s court. When it became publicly known that the suit would go through him, several observers took considerable note. Some complained that it was an unapologetic case of “judge-shopping.”

Hanen responded to this by suggesting that his district’s inclusion of a border-town (Brownsville, Texas) makes him an ideal judge for case, in part by giving him valuable insights on the topic of immigration. “Talking to anyone in Brownsville about immigration is like talking to Noah about the flood,” said Hanen. This fails to consider that there are many border towns and that Brownsville isn’t the biggest crossing point. In fact, a neighboring judicial division covers almost twice as much border and contains two-thirds of the Rio Grande Valley, which Fox News recently said is being “flooded” by an “endless wave of illegal immigrants.” However, had the case been filed there, the plaintiffs wouldn’t have gotten Judge Hanen.

Admittedly, the above isn’t sufficient to show that Hanen’s ruling is bunk, let alone that it will be reversed. So, we have examined the ruling in a separate article. Mindful of this analysis, we expect that the administration will ultimately win on appeal. In fact, the Circuit Appeals Court in New Orleans may soon put a stay on the injunction, allowing the plan to go ahead while the appeal is pending. Thus, we believe this to be only a minor setback. Those who will be eligible for DAPA and the DACA expansion should continue preparing to file. We published recommendations for doing so in the article from the 6th.

There are two closing points. The first is that there may soon be a spike in Notario activity, given that many undocumented immigrants were expecting to be able to file under these initiatives. A great deal of them may be confused as to where they stand, which is what the Notarios took advantage of at the start of DACA. We have an article about Notarios here. Lastly, this ruling does not affect the original DACA program. Those who were in the process of filing DACA renewals can go ahead as planned.