BY LINDA BENTLEY | FEBRUARY 18, 2015
Federal judge blocks Obama’s executive amnesty
Hanen stated he has no doubt the federal government’s failure to secure the borders is costing the states millions of dollars in damages each year
BROWNSVILLE, Texas – Late Monday, U.S. District Court Judge Andrew S. Hanen, for the District of Texas in Brownsville, issued an order granting a temporary injunction, halting President Barack Obama’s executive amnesty until the case can be heard.
The lawsuit, initially filed by Texas Gov. Greg Abbott when he was Texas Attorney General, was eventually joined by 25 other states.
The complaint sought injunctive relief against the United States and several officials of the Department of Homeland Security (DHS) to prevent them from implementing the “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) program.
The program was designed to provide legal presence to upwards of four million individuals currently in the country illegally and would enable those individuals to obtain state and federal benefits.
Hanen stated the beginning of the problems presented by illegal immigration in this matter was described by the U.S. Supreme Court decades ago:
“Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants-numbering in the millions-within our borders.
In 1981, U.S. Attorney General William French Smith testified before congressional committees, “We have neither the resources, the capability, nor the motivation to uproot and deport millions of illegal aliens, many of whom have become, in effect, members of the community. By granting limited legal status to the productive and law-abiding members of this shadow population, we will recognize reality and devote our enforcement resources to deterring future illegal arrivals.”
The U.S. Supreme Court stated, “This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a nation that prides itself on adherence to principles of equality under law.”
Hanen stated the population of illegal aliens in this country has more than tripled since 1982, and said, “[B]ut today’s situation is clearly exacerbated by the specter of terrorism and the increased need for security.”
He said states are obviously concerned about national security, as well as their own resources, being drained by the constant influx of illegal aliens into their respective territories.
Hanen stated, “Regardless of the reasons behind the actions or inaction of the Executive and Legislative Branches of the federal government, the result is that many states ultimately bear the brunt of illegal immigration.”
He said what the court is faced with to ultimately decide is the question: “Do the laws of the United States, including the Constitution, give the Secretary of Homeland Security the power to take the action at issue in this case?”
Hanen went on to say the issues can best be framed by emphasizing what is not involved in this case.
For starters, he said it does not involve the wisdom, or the lack thereof, underlying the decision by DHS Secretary Jeh Johnson to award legal status to over four million illegal aliens via the DAPA program.
Second, he said, with three minor exceptions, the case does not involve the Deferred Action for Childhood Arrivals (DACA) program, which permits teenagers and young adults, who were born outside the United States, but raised in this country, to apply for deferred action status and employment authorization, and does not include actions taken by former DHS Secretary Janet Napolitano, which have formalized the status of approximately 700,000 teenagers and young adults.
While both sides of the case agree Obama, in his official capacity, has not instituted any program at issue in this case, and regardless of the fact the Executive Branch made public statements to the contrary, Hanen stated, “[T]here are no executive orders or other presidential proclamations or communique that exist regarding DAPA. The DAPA Memorandum issued by Secretary Johnson is the focus in this suit.”
With that said, the three principle issues being decided are: 1) whether the states have standing to sue; 2) whether the DHS has the necessary discretion to institute the DAPA program; and 3) whether the DAPA program is constitutional, comports with existing laws, and was legally adopted.
In June 2012, Napolitano issued a memorandum creating the DACA program, instructing her department heads to give deferred action status to all illegal aliens who: came to the United States before the age of 16; continuously resided in the United States for at least five years prior to June 15, 2012 and were in the United States on June 12, 2012; were attending school, or had graduated from high school, obtained a GED, or were honorably discharged from the military; had not been convicted of a felony, significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security; and were not above the age of 30.
Napolitano’s directive applied to all individuals over the age of 15 that met the criteria, including those that were currently in removal proceedings and those newly encountered by DHS.
Additionally, DHS employees were instructed to accept work authorization applications for those individuals awarded status under DACA.
Both the plaintiffs and defendants seem to agree there were at least 1.2 million illegal immigrants that could qualify for DACA by the end of 2014.
Of those individuals, approximately 636,000 have applied and received legal presence through DACA.
However, both of those numbers are expected to rise as children “age in” and meet the program’s education requirements, with an estimated 1.7 million individuals eventually becoming eligible to receive deferred action via DACA.
DHS received approximately 723,000 DACA applications through the end of 2014 of which only 38,000 (5 percent) have been denied.
Evidence supplied supported the contention that DHS employees who process DACA applications are required to issue deferred action status to any applicant who meets the criteria outlined by Napolitano’s memo and are not permitted to use any real “discretion” when it comes to awarding deferred action status.
The union representing the individuals processing those applications further declared that DHS management has taken multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet the necessary criteria.
The states claim the DHS has taken steps to ensure applications for DAPA will likewise receive the same rubberstamping.
In November 2014, Johnson issued a memorandum directing United States Customs and Immigration Services to expand DACA by removing the age cap, extend DACA renewal and work authorization to three years and adjust the date-of-entry requirement from June 15, 2007 to January 1, 2010.
Those are the three exceptions to DACA, which was not at issue in this case, that Hanen noted earlier.
In granting the plaintiffs a temporary injunction, Hanen said, in summary, it is due to the failure of the defendants to comply with the Administrative Procedure Act.
Hanen, in his analysis, stated he has no doubt the federal government’s failure to secure the borders is costing the states, even those not immediately on the border, millions of dollars in damages each year.
He also pointed out, while the Supreme Court has recognized that states “have an interest in mitigating the potentially harsh economic effects of sudden shifts in population,” the federal government has effectively denied them any means to protect themselves from these effects.
Citing examples of negative effects and costs to states, Hanen stated, for example, in Texas, 7,409 unaccompanied illegal immigrant children were released to sponsors between October 2013 and September 2014, causing it to absorb additional education costs of at least $58,531,100 ($9,473 per child annually), which addresses only the newly-admitted, unaccompanied children and does not include all costs expended to educate all illegal alien children.
He said evidence in the record also shows in 2008, Texas incurred $716,800,000 in uncompensated medical care provided to illegal aliens.
Wisconsin, for example, paid $570,748 in unemployment benefits just to recipients of deferred action.
Maricopa County was also highlighted as incurring increased law enforcement costs stemming from those individuals who received deferred action status through DACA.
And, while that estimate only covered a 10-month period from the prior year, it exceeded $9 million.
Hanen called the frustration expressed by many states in their briefing “palpable,” and said, “It is the states’ position that each new wave of illegal immigration increases the financial burdens placed upon already-stretched state budgets.”
Because states have no authority to negotiate with Mexico, where the majority of illegal immigration is from; they cannot unilaterally raise an army to combat invaders to protect their own borders; and the federal government ardently defends against any attempt by a state to intrude into immigration enforcement, even when states only seek to enforce the very laws passed by Congress, Hanen concurred with the states and the Supreme Court that the states have standing to sue the federal government in federal court “to protect their quasi-sovereign interests in the health, welfare and natural resources of their citizens.”
Hanen said the DAPA program undermines the Immigration and Nationality Act, enacted to protect the states, and is directly at odds with the duties entrusted to DHS by Congress – namely, enforcing immigration laws, which includes guarding the border and removing illegal aliens present in the country.
Congress enacted these laws to protect the states because, under our federal system, states are forbidden from protecting themselves.
