The devil is often in the details, or so it is said. That was the case Feb. 16 when U.S. District Judge Andrew Hanen placed a temporary injunction on President Obama’s executive order to expand Deferred Action for Childhood Arrivals and create the Deferred Action for Parents of Americans and Lawful Permanent Residents program. These would have granted illegal immigrants freedom from the law if they have been in the country for more than five years, have a child who is a U.S. citizen or have been brought here themselves as children.
In order to qualify for U.S. work permits and be protected from deportation, illegals would also need to pass a criminal background check. Hanen said Obama failed to give proper public notice of his plans. The 1946 Administrative Procedure Act requires notice in the Federal Register as well as an opportunity for people to submit views in writing.
While his injunction focused on the technical, the 123-page decision delved into several aspects of the bigger picture such as how states could be injured if the programs started Feb. 18 as was planned and then ruled illegal or costs states would suffer. Perhaps the most important issue raised by the judge is rather the administration is practicing prosecutorial discretion or federal abdication.
DAPA “is an announced program of non-enforcement of the law that contradicts Congress’ statutory goals,” Hanen wrote. The law state DHS “shall” order the removal of illegal aliens.
A footnote in the decision says, “DHS has clearly announced that it has decided not to enforce the immigration laws as they apply to approximately 4.3 million individuals—as well as to untold millions that may apply but be rejected by the DAPA program. The DHS has announced that the DAPA program confers legal status upon its recipients and, even if an applicant is rejected, that applicant will still be permitted to remain in the country absent extraordinary circumstances.”
The Justice Department is expected to appeal to the 5th U.S. Circuit Court of Appeals in New Orleans. A decision on an appeal could take months.
Now the question is has the court saved Democrats in the Senate? They have blocked a DHS funding bill for weeks. With the clock running out on the agency at the end of the month, will Democrats allow a vote on DHS? After all, the Feb. 18 roll out is off. Even if the courts allow the plan to move forward, which is very much in the air at this point, it would take months before the executive branch was ready.