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<\/a>A fed\u00ader\u00adal judge has ruled that the Pres\u00adi\u00addent improp\u00ader\u00adly took immi\u00adgra\u00adtion pol\u00adi\u00adcy into his own hands. [Cred\u00adit: Tax Jus\u00adtice Blog]<\/p><\/div>A fed\u00ader\u00adal judge in Brownsville, Texas, on Mon\u00adday pro\u00advid\u00aded a way out of the Con\u00adgres\u00adsion\u00adal impasse over a bill to fund the Depart\u00adment of Home\u00adland Secu\u00adri\u00adty (DHS<\/span>). But the oppor\u00adtu\u00adni\u00adty might be squan\u00addered by Con\u00adgres\u00adsion\u00adal Repub\u00adli\u00adcans bent on self-immolation.\n Com\u00adpared with the President\u2019s exec\u00adu\u00adtive excess\u00ades and Repub\u00adli\u00adcan cir\u00adcu\u00adlar fir\u00ading squads, Fed\u00ader\u00adal Dis\u00adtrict Court Judge Andrew S. Hanen\u2019s pre\u00adlim\u00adi\u00adnary injunc\u00adtion<\/a> against the Admin\u00adis\u00adtra\u00adtion\u2019s immi\u00adgra\u00adtion pol\u00adi\u00adcy is a mod\u00adel of ratio\u00adnal\u00adi\u00adty and restraint.<\/p>\n Hanen did not declare the series of DHS<\/span> mem\u00ado\u00adran\u00adda<\/a> extend\u00ading law\u00adful sta\u00adtus to mil\u00adlions of peo\u00adple unlaw\u00adful\u00adly present in the U.S. to be uncon\u00adsti\u00adtu\u00adtion\u00adal. Nor did he assert that the depart\u00adment had exceed\u00aded its statu\u00adto\u00adry author\u00adi\u00adty. He mere\u00adly held that the agency failed to fol\u00adlow legal\u00adly-estab\u00adlished pro\u00adce\u00addures when it changed immi\u00adgra\u00adtion pol\u00adi\u00adcy. His order delayed imple\u00admen\u00adta\u00adtion of the Administration\u2019s par\u00adtial amnesty plan, pend\u00ading a final rul\u00ading on the case. The Jus\u00adtice Depart\u00adment is expect\u00aded to appeal<\/a>.<\/p>\n Hanen\u2019s tem\u00adpo\u00adrary injunc\u00adtion has pro\u00advoked the shrill\u00adness the char\u00adac\u00adter\u00adizes the immi\u00adgra\u00adtion debate. A spokesman<\/a> for the Ser\u00advice Employ\u00adees Inter\u00adna\u00adtion\u00adal Union derid\u00aded him as a \u201clone out-of-touch judge\u201d who had been sought out by the \u201cextrem\u00adist Repub\u00adli\u00adcan Gov\u00ader\u00adnors\u201d who filed suit against the immi\u00adgra\u00adtion pol\u00adi\u00adcy. The union official\u2019s com\u00adments call to mind those of for\u00admer Alas\u00adka Gov\u00ader\u00adnor Sarah Palin<\/a> who last Novem\u00adber likened the Administration\u2019s immi\u00adgra\u00adtion pol\u00adi\u00adcy to \u201cgiv\u00ading vot\u00aders the mid\u00addle finger.\u201d<\/p>\n The obscene ges\u00adture to which Palin referred was a new DHS<\/span> pro\u00adgram \u201cto stay depor\u00adta\u00adtion pro\u00adceed\u00adings and award cer\u00adtain ben\u00ade\u00adfits to approx\u00adi\u00admate\u00adly four to five mil\u00adlion indi\u00advid\u00adu\u00adals resid\u00ading ille\u00adgal\u00adly in the U.S.\u201d [p. 7 of Hanen mem\u00ado\u00adran\u00addum opin\u00adion<\/a>]. A group of 26 states sought to enjoin the action. The Admin\u00adis\u00adtra\u00adtion asked Hanen to dis\u00admiss the law\u00adsuit, argu\u00ading that the states lacked \u201cstand\u00ading\u201d to bring the suit and that their com\u00adplaint was with\u00adout merit.<\/p>\n Hanen devot\u00aded 50 pages to the ques\u00adtion of stand\u00ading, which requires the plain\u00adtiff states to show that imple\u00admen\u00adta\u00adtion of the new pol\u00adi\u00adcy would cause them harm. He con\u00adclud\u00aded that the State of Texas had \u201cshown that it will suf\u00adfer an injury [in the form of high\u00ader social wel\u00adfare pay\u00adments and reduced tax rev\u00adenues], that this injury is prox\u00adi\u00admate\u00adly caused by the actions of the [fed\u00ader\u00adal] gov\u00adern\u00adment, and that a favor\u00adable rem\u00ade\u00addy issued by the court would pre\u00advent this injury\u201d [p. 67].<\/p>\n Hav\u00ading estab\u00adlished that the law\u00adsuit could move for\u00adward, he then exam\u00adined its mer\u00adits. Hanen zeroed in on the Administration\u2019s duplic\u00adi\u00adty. On the one hand, DHS<\/span> claims it is not chang\u00ading immi\u00adgra\u00adtion law, but mere\u00adly exer\u00adcis\u00ading dis\u00adcre\u00adtion in its enforce\u00adment. On the oth\u00ader, the pol\u00adi\u00adcy extends affir\u00adma\u00adtive ben\u00ade\u00adfits to mil\u00adlions of undoc\u00adu\u00adment\u00aded res\u00adi\u00addents, which is quite dif\u00adfer\u00adent from mere\u00adly tol\u00ader\u00adat\u00ading their unlaw\u00adful presence.<\/p>\n \u201c<\/span>I just took action to change the law,\u201d the Pres\u00adi\u00addent proud\u00adly pro\u00adclaimed<\/a> after announc\u00ading the pol\u00adi\u00adcy. Hanen agreed. The DHS<\/span> Sec\u00adre\u00adtary \u201cis not just rewrit\u00ading the laws; he is cre\u00adat\u00ading them from scratch.\u201d That, Hanen argued, con\u00adsti\u00adtut\u00aded a sub\u00adstan\u00adtive admin\u00adis\u00adtra\u00adtive action.<\/p>\n He drew a sharp dis\u00adtinc\u00adtion between agency inac\u00adtion (the mere fail\u00adure to remove those unlaw\u00adful\u00adly present in the U.S., a long-stand\u00ading prac\u00adtice) and the sub\u00adstan\u00adtive action that the new DHS<\/span> pol\u00adi\u00adcy involves. The pol\u00adi\u00adcy, he observed, goes far beyond \u201cinstruct[ing] its offi\u00adcers to mere\u00adly refrain from arrest\u00ading \u2026 or pros\u00ade\u00adcut\u00ading unlaw\u00adful\u00adly-present aliens,\u201d some\u00adthing that can fair\u00adly be described as pros\u00ade\u00adcu\u00adto\u00adr\u00adi\u00adal dis\u00adcre\u00adtion. \u201cDHS<\/span> has enact\u00aded a wide-reach\u00ading pro\u00adgram that awards legal pres\u00adence to indi\u00advid\u00adu\u00adals Con\u00adgress has deemed deportable or remov\u00adable, as well as the abil\u00adi\u00adty to obtain Social Secu\u00adri\u00adty num\u00adbers, work autho\u00adriza\u00adtion per\u00admits and the abil\u00adi\u00adty to trav\u00adel\u201d [pp. 85\u20136].<\/p>\n As such, it is a \u201cleg\u00adisla\u00adtive\u201d or \u201csub\u00adstan\u00adtive\u201d rule under the Admin\u00adis\u00adtra\u00adtive Pro\u00adce\u00addures Act (APA<\/span>). That statute pro\u00adhibits fed\u00ader\u00adal agen\u00adcies from tak\u00ading such actions with\u00adout first pub\u00adlish\u00ading a pro\u00adposed rule in the Fed\u00ader\u00adal Reg\u00adis\u00adter<\/em> and solic\u00adit\u00ading com\u00adments from the pub\u00adlic, ordi\u00adnar\u00adi\u00adly over a peri\u00adod of 60 days. The final reg\u00adu\u00adla\u00adtion can only be pub\u00adlished after the com\u00adment peri\u00adod clos\u00ades, most com\u00admon\u00adly with a pre\u00adam\u00adble that includes agency respons\u00ades to those com\u00adments. DHS<\/span> ignored these require\u00adments in estab\u00adlish\u00ading its new immi\u00adgra\u00adtion policy.<\/p>\n \u201c<\/span>The Court there\u00adfore finds that, not only is [the DHS<\/span> pol\u00adi\u00adcy] review\u00adable,\u201d Hanen wrote, \u201cbut that its adop\u00adtion has vio\u00adlat\u00aded the pro\u00adce\u00addur\u00adal require\u00adments of the APA<\/span>. There\u00adfore, this Court here\u00adby holds for pur\u00adpos\u00ades of the tem\u00adpo\u00adrary injunc\u00adtion that the imple\u00admen\u00adta\u00adtion of [the DHS<\/span> pol\u00adi\u00adcy] vio\u00adlates the APA<\/span>\u2019s pro\u00adce\u00addur\u00adal require\u00adments and the states have clear\u00adly proven a like\u00adli\u00adhood of suc\u00adcess on the mer\u00adits\u201d [p. 112].<\/p>\n The pre\u00adlim\u00adi\u00adnary injunc\u00adtion has done what Con\u00adgres\u00adsion\u00adal Repub\u00adli\u00adcans could not do: stopped imple\u00admen\u00adta\u00adtion of the President\u2019s pro\u00adgram, a por\u00adtion of which was to have tak\u00aden effect yes\u00adter\u00adday. Unless it is nul\u00adli\u00adfied on appeal, the court order will stand at least for sev\u00ader\u00adal months as the case is adjudicated.<\/p>\n There is thus no rea\u00adson to con\u00adtin\u00adue the stand\u00adoff between House Repub\u00adli\u00adcans, whose ver\u00adsion of the DHS<\/span> fund\u00ading bill would bar the agency from enforc\u00ading the immi\u00adgra\u00adtion pol\u00adi\u00adcy through Sep\u00adtem\u00adber 30, and Sen\u00adate Democ\u00adrats, who are fil\u00adi\u00adbus\u00adter\u00ading the House-passed bill and insist\u00ading that the immi\u00adgra\u00adtion-relat\u00aded pro\u00advi\u00adsions be stripped. The court rul\u00ading frees Repub\u00adli\u00adcans to fund DHS<\/span> with\u00adout rid\u00aders that the Sen\u00adate won\u2019t pass and the Pres\u00adi\u00addent would nev\u00ader sign.<\/p>\n But the con\u00adser\u00adv\u00ada\u00adtive chat\u00adter\u00ading class is urg\u00ading Repub\u00adli\u00adcans to ignore this judi\u00adcial gift. They want the con\u00adfronta\u00adtion to con\u00adtin\u00adue, though its fail\u00adure is foreordained.<\/p>\n Con\u00adtem\u00adpo\u00adrary con\u00adser\u00advatism is increas\u00ading\u00adly defined by a dogged com\u00admit\u00adment to futil\u00adi\u00adty. The more ill-con\u00adceived and inef\u00adfec\u00adtu\u00adal a strat\u00ade\u00adgy, the more deter\u00admined some on the Right are to pur\u00adsue it and to con\u00addemn those who note its pointlessness.<\/p>\n If the Pres\u00adi\u00addent can be fault\u00aded for uncon\u00adsti\u00adtu\u00adtion\u00adal over\u00adreach, the oppo\u00adsi\u00adtion par\u00adty is guilty of chron\u00adic under\u00adachieve\u00adment. Their goal is not to leg\u00adis\u00adlate, but to strike a defi\u00adant pose. Such is the debased state into which Wash\u00ading\u00adton pol\u00adi\u00adtics has descended.<\/p>\n A fed\u00ader\u00adal judge in Brownsville, Texas, has shown how a com\u00admit\u00adment to con\u00adsti\u00adtu\u00adtion\u00adal val\u00adues can pro\u00adduce sen\u00adsi\u00adble out\u00adcomes. Per\u00adhaps that sort of think\u00ading will one day make its way from Brownsville to Washington.<\/p>\n","protected":false},"excerpt":{"rendered":" A fed\u00ader\u00adal judge in Brownsville, Texas, on Mon\u00adday pro\u00advid\u00aded a way out of the Con\u00adgres\u00adsion\u00adal impasse over a bill to fund the Depart\u00adment of Home\u00adland Secu\u00adri\u00adty (DHS<\/span>). But the oppor\u00adtu\u00adni\u00adty might be squan\u00addered by Con\u00adgres\u00adsion\u00adal Repub\u00adli\u00adcans bent on self-immo\u00adla\u00adtion. Com\u00adpared \u2026 Con\u00adtin\u00adue read\u00ading