A fed­er­al judge in Brownsville, Texas, on Mon­day pro­vid­ed a way out of the Con­gres­sion­al impasse over a bill to fund the Depart­ment of Home­land Secu­ri­ty (DHS).  But the oppor­tu­ni­ty might be squan­dered by Con­gres­sion­al Repub­li­cans bent on self-immolation.

Com­pared with the President’s exec­u­tive excess­es and Repub­li­can cir­cu­lar fir­ing squads, Fed­er­al Dis­trict Court Judge Andrew S. Hanen’s pre­lim­i­nary injunc­tion against the Admin­is­tra­tion’s immi­gra­tion pol­i­cy is a mod­el of ratio­nal­i­ty and restraint.

Hanen did not declare the series of DHS mem­o­ran­da extend­ing law­ful sta­tus to mil­lions of peo­ple unlaw­ful­ly present in the U.S. to be uncon­sti­tu­tion­al.  Nor did he assert that the depart­ment had exceed­ed its statu­to­ry author­i­ty.  He mere­ly held that the agency failed to fol­low legal­ly-estab­lished pro­ce­dures when it changed immi­gra­tion pol­i­cy.  His order delayed imple­men­ta­tion of the Administration’s par­tial amnesty plan, pend­ing a final rul­ing on the case.  The Jus­tice Depart­ment is expect­ed to appeal.

Hanen’s tem­po­rary injunc­tion has pro­voked the shrill­ness the char­ac­ter­izes the immi­gra­tion debate. A spokesman for the Ser­vice Employ­ees Inter­na­tion­al Union derid­ed him as a “lone out-of-touch judge” who had been sought out by the “extrem­ist Repub­li­can Gov­er­nors” who filed suit against the immi­gra­tion pol­i­cy. The union official’s com­ments call to mind those of for­mer Alas­ka Gov­er­nor Sarah Palin who last Novem­ber likened the Administration’s immi­gra­tion pol­i­cy to “giv­ing vot­ers the mid­dle finger.”

The obscene ges­ture to which Palin referred was a new DHS pro­gram “to stay depor­ta­tion pro­ceed­ings and award cer­tain ben­e­fits to approx­i­mate­ly four to five mil­lion indi­vid­u­als resid­ing ille­gal­ly in the U.S.” [p. 7 of Hanen mem­o­ran­dum opin­ion]. A group of 26 states sought to enjoin the action.  The Admin­is­tra­tion asked Hanen to dis­miss the law­suit, argu­ing that the states lacked “stand­ing” to bring the suit and that their com­plaint was with­out merit.

Hanen devot­ed 50 pages to the ques­tion of stand­ing, which requires the plain­tiff states to show that imple­men­ta­tion of the new pol­i­cy would cause them harm.  He con­clud­ed that the State of Texas had “shown that it will suf­fer an injury [in the form of high­er social wel­fare pay­ments and reduced tax rev­enues], that this injury is prox­i­mate­ly caused by the actions of the [fed­er­al] gov­ern­ment, and that a favor­able rem­e­dy issued by the court would pre­vent this injury” [p. 67].

Hav­ing estab­lished that the law­suit could move for­ward, he then exam­ined its mer­its.  Hanen zeroed in on the Administration’s duplic­i­ty.  On the one hand, DHS claims it is not chang­ing immi­gra­tion law, but mere­ly exer­cis­ing dis­cre­tion in its enforce­ment.  On the oth­er, the pol­i­cy extends affir­ma­tive ben­e­fits to mil­lions of undoc­u­ment­ed res­i­dents, which is quite dif­fer­ent from mere­ly tol­er­at­ing their unlaw­ful presence.

“I just took action to change the law,” the Pres­i­dent proud­ly pro­claimed after announc­ing the pol­i­cy.  Hanen agreed.  The DHS Sec­re­tary “is not just rewrit­ing the laws; he is cre­at­ing them from scratch.”  That, Hanen argued, con­sti­tut­ed a sub­stan­tive admin­is­tra­tive action.

He drew a sharp dis­tinc­tion between agency inac­tion (the mere fail­ure to remove those unlaw­ful­ly present in the U.S., a long-stand­ing prac­tice) and the sub­stan­tive action that the new DHS pol­i­cy involves.  The pol­i­cy, he observed, goes far beyond “instruct[ing] its offi­cers to mere­ly refrain from arrest­ing … or pros­e­cut­ing unlaw­ful­ly-present aliens,” some­thing that can fair­ly be described as pros­e­cu­to­r­i­al dis­cre­tion. “DHS has enact­ed a wide-reach­ing pro­gram that awards legal pres­ence to indi­vid­u­als Con­gress has deemed deportable or remov­able, as well as the abil­i­ty to obtain Social Secu­ri­ty num­bers, work autho­riza­tion per­mits and the abil­i­ty to trav­el” [pp. 85–6].

As such, it is a “leg­isla­tive” or “sub­stan­tive” rule under the Admin­is­tra­tive Pro­ce­dures Act (APA).  That statute pro­hibits fed­er­al agen­cies from tak­ing such actions with­out first pub­lish­ing a pro­posed rule in the Fed­er­al Reg­is­ter and solic­it­ing com­ments from the pub­lic, ordi­nar­i­ly over a peri­od of 60 days.  The final reg­u­la­tion can only be pub­lished after the com­ment peri­od clos­es, most com­mon­ly with a pre­am­ble that includes agency respons­es to those com­ments.  DHS ignored these require­ments in estab­lish­ing its new immi­gra­tion policy.

“The Court there­fore finds that, not only is [the DHS pol­i­cy] review­able,” Hanen wrote, “but that its adop­tion has vio­lat­ed the pro­ce­dur­al require­ments of the APA.  There­fore, this Court here­by holds for pur­pos­es of the tem­po­rary injunc­tion that the imple­men­ta­tion of [the DHS pol­i­cy] vio­lates the APA’s pro­ce­dur­al require­ments and the states have clear­ly proven a like­li­hood of suc­cess on the mer­its” [p. 112].

The pre­lim­i­nary injunc­tion has done what Con­gres­sion­al Repub­li­cans could not do: stopped imple­men­ta­tion of the President’s pro­gram, a por­tion of which was to have tak­en effect yes­ter­day.  Unless it is nul­li­fied on appeal, the court order will stand at least for sev­er­al months as the case is adjudicated.

There is thus no rea­son to con­tin­ue the stand­off between House Repub­li­cans, whose ver­sion of the DHS fund­ing bill would bar the agency from enforc­ing the immi­gra­tion pol­i­cy through Sep­tem­ber 30, and Sen­ate Democ­rats, who are fil­i­bus­ter­ing the House-passed bill and insist­ing that the immi­gra­tion-relat­ed pro­vi­sions be stripped.  The court rul­ing frees Repub­li­cans to fund DHS with­out rid­ers that the Sen­ate won’t pass and the Pres­i­dent would nev­er sign.

But the con­ser­v­a­tive chat­ter­ing class is urg­ing Repub­li­cans to ignore this judi­cial gift.  They want the con­fronta­tion to con­tin­ue, though its fail­ure is foreordained.

Con­tem­po­rary con­ser­vatism is increas­ing­ly defined by a dogged com­mit­ment to futil­i­ty.  The more ill-con­ceived and inef­fec­tu­al a strat­e­gy, the more deter­mined some on the Right are to pur­sue it and to con­demn those who note its pointlessness.

If the Pres­i­dent can be fault­ed for uncon­sti­tu­tion­al over­reach, the oppo­si­tion par­ty is guilty of chron­ic under­achieve­ment.  Their goal is not to leg­is­late, but to strike a defi­ant pose. Such is the debased state into which Wash­ing­ton pol­i­tics has descended.

A fed­er­al judge in Brownsville, Texas, has shown how a com­mit­ment to con­sti­tu­tion­al val­ues can pro­duce sen­si­ble out­comes.  Per­haps that sort of think­ing will one day make its way from Brownsville to Washington.