Update II: Gay marriage? The Supreme Court will take up the issue of gay marriage. So what does this have to do with immigration? For that matter what does this have to do with ObamaCare? Noah Rothman makes a case for The Supreme Court’s possible gay marriage gift to the GOP in 2016. It’s mostly a “take the issue off the table” argument.
But we think the gift to the GOP and Obama opponents is much much bigger. We think another chess piece has just been moved. We’ve discussed Supreme Court chess when it comes to ObamaCare before. We wrote “Now the Supreme Court will move against ObamaCare before the 2016 election and safely after the 2014 elections.” Chief Justice John Roberts wants to protect the court and this desire hurt ObamaCare opponents in the first court decision (which came in June of election year 2012) but works against ObamaCare now that the high court will be protected from election year attacks.
So why do we think that this weirdly timed gay marriage case is to be heard this term with a decision likely in June as a boon to the GOP? Try this: Chief Justice Roberts would love to rule in favor of gay marriage at the same time he rules against ObamaCare subsidies and Obama’s illegal illegal immigration diktat. This way the Supreme Court gets praise (on gay marriage) and attack (on ObamaCare and illegal immigration) from the left and praise (on illegal immigration and ObamaCare subsidies) and attack (on gay marriage) from the right. Positioned right on the center of the political chessboard and protected from attacks is just where the Roberts Supreme Court wants to be.
Update: As our main article notes, the courts will have to intervene because the Republicans can’t or won’t fight Obama’s illegal illegal immigration diktat. The latest tell-all clue comes from Mitch McConnell to conservatives: We’ll do our best to stop Obama’s executive amnesty but don’t expect miracles, okay? The good news in all this? At least Mitch did not have James Taylor sing “I Surrender Dear”.
The immigration struggles hit Europe in its Paris heartland and the next elections will see a rightward shift on the continent. In America, immigration has been a big issue too and getting bigger. Yesterday, Republican/conservative website HotAir mocked as futile Kabuki posturing the Republican House votes to undo Obama’s executive amnesties as part of new funding bill for Homeland Security.
Well, it’s not entirely a Kabuki performance – maybe more a dress rehearsal for the show that tops the bill: the courts. The Republican controlled House went on the record with its vote and that can only help the real immigration fight WHICH TAKES PLACE TODAY.
What do we think is going to happen? We believe the district court will rule with the plaintiffs. Then upon appeal the
9th5th circuit will overturn the district court. This then sets up the same circumstances we discussed as to the ObamaCare Halbig cases – the plaintiff states will reject an en banc appeal and instead go directly to the Supreme Court. Ordinarily the Supreme Court would side with the 9th 5th Circuit and defer to the government and Obama but Obama’s imperial rule will force the Supreme Court to side with the plaintiff states and clip Obama’s wings on immigration (as well as on ObamaCare). That’s our best prognostication – we are sure others will disagree and they will walk down the street with their umbrellas open as we stroll on the sunny side.
We wrote about and posted the Lawsuit Against Obama’s Illegal Illegal Immigration Executive Diktat when it was filed on December 4, 2014. The lawsuit specifically targeted Obama’s illegal executive overreach and unconstitutional power play not the issue of immigration itself. Today the action moves to the courtroom.
To recap, several states which now add up to 25 filed on December 4, 2014 a lawsuit targeting Obama’s imposition of a change in immigration law via executive orders and departmental policy changes. The states seek injunctive relief and believe they satisfy the three prong test for such relief. On December 24, 2014 the government filed its response (which can be read in PDF form HERE) to the lawsuit.
On Sunday, January 11, 2015 the plaintiff’s filed a detailed brief of the damage Obama’s amnesty inflicts on their finances. To counter the claim of standing with citation of damages to them by the 24 state plaintiffs, on Tuesday twelve states and the District of Columbia filed an amicus curiae brief with the court (pdf file is HERE) claiming Obama’s imperial overreach does not harm them but is wonderful and profitable.
Today, all these filings land in a courtroom in Texas:
Obama amnesty to impose billions in costs on states, lawsuit alleges
25 states detail financial burdens resulting from non-deportation order in lawsuit
President Obama’s new deportation amnesty will impose “billions of dollars in costs” on states, they told a federal court this week — including more than $130 for each Texas driver’s license issued to illegal immigrants under the policy.
More than 1,100 pages of documents submitted by Texas and two dozen other states suing to stop the amnesty detail the costs in depth, and include sworn affidavits from state officials, federal immigration officers and others arguing that the amnesty will increase illegal immigration, leaving the states with even bigger burdens.
Wisconsin said the illegal immigrants granted amnesty would be eligible to apply for concealed weapons permits at a cost to state taxpayers. Indiana said it will end up paying unemployment benefits to the illegal immigrants. And in Texas, officials said they’ll have to hire more than 100 new employees to process hundreds of thousands of driver’s license applications, with state taxpayers shelling out more than $130 per applicant.
“The states will lose money,” Texas, which is leading the lawsuit, told Judge Andrew Hanen in legal papers.
These cases typically founder on the question of standing. It’s why two days before today’s hearing there was a scramble by the twelve states saying all is well and wonderful. Mocked by many, the Texas led case appears to meet the question of standing:
The case turns on two key factors: first, whether Texas and the 24 other states that have joined the lawsuit can show they or their residents stand to suffer from the president’s policies; and second, whether Mr. Obama’s actions go beyond case-by-case discretion and tread on Congress‘ power to write laws and set policy.
Texas and its fellow states argue the licenses and other benefits prove they will suffer, which means they have “standing” to sue in court.
They also painted a compelling picture of the program as a rubber-stamp rather than the careful case-by-case decisions the Obama administration claims.
Texas says a 95 percent approval rate for applicants for the existing amnesty for so-called Dreamers shows the program is a rubber stamp. The state even filed an affidavit to that effect from Kenneth Palinkas, head of the labor union of officers who process the applications.
“Leadership has intentionally stopped proper screening and enforcement and, in so doing, it has guaranteed that applications will be rubber-stamped for approval, a practice that virtually guarantees widespread fraud and places public safety at risk,” Mr. Palinkas said.
As with ObamaCare, the government argument is somewhat topsy-turvey:
Texas also says the administration has repeatedly hurt its own case with the way it’s gone about attacking states that have cracked down on illegal immigration, while trying to make its own amnesty programs as generous as possible.
In one instance, the administration argues that states don’t have to issue driver’s licenses to illegal immigrants — thus saying there’s no financial burden to states from the amnesty. But the administration is currently arguing in another case out of Arizona that states must issue driver’s licenses to those granted the amnesty and work permits.
The 9th U.S. Circuit Court of Appeals has sided with the administration, meaning that all of the states under its jurisdiction, including three of the plaintiff states in the Texas case, do not have a choice.
In another example, Texas submitted the declaration of a labor economist who said that because the illegal immigrants would become legal workers but still aren’t eligible for Obamacare, they are cheaper to hire for some businesses. Texas said that’s exactly the kind of “economic harm” that courts are allowed to step in and fight.
The Obama administration told the court that judges don’t have the power to stop the president’s use of discretion. [snip]
“The state lawsuit is about politics, not policy or the constitutionality of the executive actions,” said Marielena Hincapie, executive director of the National Immigration Law Center, which has filed briefs in the case defending the policy. “Ultimately, we — along with scores of legal experts — believe the courts will prove that President Obama’s immigration policy is legally sound.”
Meanwhile, the Cato Institute has filed briefs challenging the program. [snip]
“All of this is pretty new in the sense that the administration is coming up with creative ways of governing without Congress,” he said.
Cato’s involvement is intriguing because, as a libertarian-leaning think tank, it generally agrees with legalizing illegal immigrants. But Mr. Shapiro said sometimes “something can be good policy yet bad law.”
Advocates are already preparing for the government to accept applications. A first round, for those brought to the U.S. as children, will begin by Feb. 20. A second round, for illegal immigrant parents of children who are U.S. citizens or legal permanent residents, will follow 90 days later.
Barack Obama has veto power over whatever congress can pass and that is why the courts must intervene if law is to rule the nation. In this, the plaintiffs chose their venue well:
U.S. President Barack Obama drew the short straw in a lawsuit by 25 states seeking to block efforts to loosen immigration restrictions: The judge who will decide the case has previously assailed him in that arena for turning “a blind eye to criminal conduct.” [snip]
Hanen may prove a tough sell. The judge, whose courthouse is located on the Mexican border, accused the Department of Homeland Security last year of complicity in cross-border child smuggling.
“The DHS should enforce the laws of the United States — not break them,” Hanen said in a written opinion.
Hanen, who was appointed by Republican George W. Bush in 2002, rebuked the agency for “completing the criminal conspiracy” by delivering undocumented children caught at the border to their parents living illegally in the U.S. The judge complained in a December 2013 opinion that the undocumented parents weren’t arrested or deported after being reunited with their kids, and taxpayers were footing the transit bills.
The biggest beneficiaries of the conspiracy, Hanen said, are the Mexican drug cartels that control the border smuggling rings, who’ve learned to rely on the U.S. government to “finish the job of the human traffickers” if they get caught.
“Instead of enforcing the law of the United States, the government took direct steps to help the individuals who violated it,” Hanen wrote in his opinion that followed a string of child-trafficking convictions in his court. “A private citizen would, and should, be prosecuted for this conduct.”
If the plaintiffs cannot win with this judge then forget the Supreme Court or the appeal courts. This judge appears to be very resistant to the government’s argument:
“At its core, plaintiffs’ suit is a generalized disagreement about the scope of the prosecutorial discretion of the executive branch of the federal government, in the exercise of exclusive federal authority over immigration,” government lawyers said in a filing today in the Brownsville court.
That authority, under prior rulings of the Supreme Court, includes the right to “decide whether it makes sense to pursue removal at all, including because of immediate human concerns,” White Houe lawyers said.
Immigration officials must focus their limited resources on deporting criminals and recent border-crossers, because Congress singled these groups out for priority handling without providing sufficient funding to accomplish the job, the White House said in the filing.
By shifting away from “low-priority aliens,” DHS can spend more on rounding up dangerous immigrants and those without family ties to the U.S., they said.
The Obama administration told Hanen it believes judges don’t have authority to decide if the president abused his power by changing immigration laws singlehandedly, without Congressional approval.
Under a 1985 Supreme Court ruling, “an agency’s decision not to exercise its enforcement authority, or to exercise it in a particular way, is presumed to be immune from judicial review,” White House lawyers said in court papers. [snip]
Brownsville has just two federal judges — Hanen and an appointee of Democratic ex-President Bill Clinton — and they evenly split all incoming civil cases, according to the court’s website and a courthouse clerk who confirmed the case-assignment protocol but declined to give her name.
“The assignments are random” between Hanen and the other judge, Lauren Bean, a spokeswoman for the state attorney general’s office, said in an e-mailed response to questions on how Texas decided where to file the case.
Plaintiffs chose their venue well and lucked out in the random draw. If they can’t win now in this district court….
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. [snip]
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.” [snip]
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.
Public opinion as reflected in polls does not approve of Obama’s executive overreach.
Asserting a legal and constitutional authority he himself said he did not have, President Obama is going rogue, issuing an executive amnesty to 4 to 5 million illegal aliens. [snip]
Thus does our constitutional law professor-president “faithfully execute” the laws of the United States he has twice swore to uphold?
Our rogue president has crossed an historic line, and so has the republic. Future presidents will cite the “Obama precedent” when they declare they will henceforth not enforce this or that law, because of a prior commitment to some noisy constituency.
We have just taken a monumental step away from republicanism toward Caesarism. For this is rule by diktat, the rejection of which sparked the American Revolution. [snip]
Immigrants who waited in line for years to come to America, and those waiting still, have egg on their faces. Why, they are saying to themselves, were we so stupid as to obey U.S. laws, when it is the border-jumpers who are now on the way to residency and citizenship?
The courts do not want to intervene in a fight between the legislative branch and the executive branch. But they will have to. It’s that “rule of law” thing.