San Antonio Express-News – BROWNSVILLE – A federal judge in Brownsville will hear oral arguments Thursday from Texas and 24 other states that want to block President Barack Obama’s executive action on immigration, which shields about 5 million undocumented immigrants from deportation.
U.S. District Judge Andrew Hanen is expected to decide whether the lawsuit opposing Obama’s plan on immigration should proceed and its implementation suspended because of the perceived harm claimed by the 25 plaintiff states.
“It is a case we lawyers call a case of first impression in the sense there never has been one like it,” said Muzaffar Chishti, director of the Migration Policy Institute’s office at New York University School of Law. “There is not a direct precedent for this action to know the law is clearly on one side or the other.”
On Nov. 20, Obama announced his executive action, which greatly expands the 2012 Deferred Action for Childhood Arrivals program, and includes a deferred action program for undocumented parents of U.S. citizens and permanent residents.
In response, Texas Attorney General Greg Abbott, the incoming governor, filed a lawsuit to block the action, arguing the president overstepped his legal authority by not getting congressional approval. Twenty-four other states and attorneys general, most of them Republican, have since joined the Texas-led lawsuit. A dozen states and 27 police chiefs and sheriffs filed a brief earlier this week supporting Obama’s action.
Legal scholars say the issues of deferred action and executive discretion on matters of immigration have been upheld in court many times before, and yet predicting the outcome of this lawsuit is difficult because of its unprecedented scale.
“Under current case law, there is no basis to find this action illegal,” Chishti said. “But there has never been a case of 5 million, and therefore one might argue that prior cases don’t apply.”
Abbott has said Texas shouldered the financial brunt of Obama’s 2012 executive action on deferred action, costing taxpayers tens of millions of dollars for an increased police presence on the border, along with health care and education costs.
But non-citizen students are already eligible to attend public schools under a 1982 Supreme Court decision – similarly immigrants are currently eligible for emergency health care coverage under existing law, casting doubt whether a claim of financial harm would hold up in court.
Significant portions of the complaint against Obama point to comments the president made before his decision in which he questions his authority to exercise discretion on immigration. The president’s admission of doubt, however, is not itself a legal argument, according to legal scholars.
“I think the arguments are deeply flawed and are unlikely to be successful,” said Denise Gilman, clinical professor and co-director of the immigration clinic at the University of Texas School of Law. “There’s nothing anywhere that suggests that there’s a limit on the number of individuals who can benefit from an exercise of prosecutorial discretion.”
Aside from the impassioned debate, most observers agree the location in Hanen’s court adds intrigue to Thursday’s hearing. Hanen drew national attention in 2013 when he said the Department of Homeland Security carries out the criminal ends of smuggling organizations when it reunites children with parents in the country illegally.
But Gilman described Hanen, an appointee of former President George W. Bush, as moderate and careful during the highly contentious border wall litigation that attempted to block fence construction in the Rio Grande Valley.
“He was very thoughtful about the process and made sure the arguments on both sides were heard in a very legitimate way,” Gilman said. “I don’t think he’s a conservative knee-jerk judge.”
With appeals certain to follow Hanen’s ruling — and the deadline for expanded DACA program due in February and deferred action for parents in May — millions of immigrants could be kept in limbo while the lawsuit works its way through the courts.
Separately, opposition to Obama’s immigration policies are also gathering momentum in the Republican-led House of Representatives, which moved on Wednesday to block it his action.
Activists gathered Wednesday outside San Antonio’s federal courthouse to denounce Abbott’s lawsuit as “political stunt,” while calling executive action a relief for families who have been in the U.S. for years yet risk separation if a family member is deported, said Joaquín Guerra, political director of the Texas Organizing Project.
“This is Greg Abbott versus immigrant families,” Guerra said.
