Another Roadblock to Plan That Would Shield Millions from Deportation

April 9th 2015

Mike Vainisi

A Federal judge on Tuesday said that he will not remove a stay that is currently blocking President Obama's new immigration enforcement plan that would protect an estimated 4 million people from deportation. The Justice Department hopes a higher appellate court, set to hear their case on April 17, will reverse the action.

The plan, which relies on the president's power of executive action, would stop deportations of people who came to the United States as children or early teenagers and people with children who are legal U.S. residents. Judge Andrew Hanen, who sits on the federal bench in Texas, put that plan on hold when he issued a preliminary injunction in February, just a day before the Department of Homeland Security (DHS) planned to begin accepting applications for these new protections. Judge Hanen said the president's actions went beyond the president's authority to enforce the law.

The White House has expressed confidence that they will ultimately win the case and that the president's plan will move forward, according to the New York Times. Additionally, should the case reach the Supreme Court, legal scholars have also noted that at least two conservative Supreme Court justices have been sympathetic to the president's broader interpretation of his immigration enforcement powers. This process, however, will take months before its completely resolved.

There was some good news for the White House on Wednesday. A different federal court -- a 5th Circuit appellate panel -- rejected a challenge to the Deferred Action for Childhood Arrivals (DACA) program. DACA is a 2012 executive action in 2012 (explained more below) that helps undocumented immigrants who came to the United States as children. The president's new immigration plan, currently at issue in front of Judge Hanen, is more or less an expansion of the principles of DACA (also explained more below).

Why did the judge block the plan?

The issue in the case is whether President Obama has the power to formally protect these groups from deportation. 

The president argues that this action is merely within his discretion to best distribute the resources of the federal government as it enforces immigration laws. The analogy made by many is that of a city police force placing officers in certain, high-crime areas where they might be most effective. Similarly, the White House argues, the president is choosing to focus on deporting dangerous individuals -- like convicted criminals -- instead of the mother of a legal resident. 

"The Department of Justice, legal scholars, immigration experts, and the district court in Washington, D.C. have determined that the President’s actions are well within his legal authority," said a White House statement about the stay. "Top law enforcement officials, along with state and local leaders across the country, have emphasized that these policies will also benefit the economy and help keep communities safe."

On the other hand, Judge Hanen and the 26 states that sued the president to stop this action believe that this new immigration plan goes beyond mere discretionary enforcement. It sets up entirely new program under which these people can stay in the United States. They argue that the president effectively re-wrote immigration laws -- something he cannot do without Congress' approval.

Texas Gov. Greg Abbott -- who initially filed this law suit while serving as Texas' attorney general -- has praised the block.

"President Obama abdicated his responsibility to uphold the United States Constitution when he attempted to circumvent the laws passed by Congress via executive fiat, and Judge Hanen’s decision rightly stops the President’s overreach in its tracks," said Gov. Abbott in a statement.

Who exactly would be protected under this plan?

  1. People who came the US. before 2011 and before they were 16 years old. These are people who entered the United States as children (presumably with their parents or some other adult) and remain in the country without legal status. Often, you'll hear this group referred to as "Dreamers" in reference to the DREAM Act, a law that would have awarded this group permanent legal status. When Congress failed to pass that law, leaving this group vulnerable to deportation, the president took an executive action to protect some of them from deportation. He did that in 2012, and it was called Deferred Action for Childhood Arrivals (DACA). The DACA pool was expanded by the president's recent executive order at the end of 2014. While DACA itself remains in place, the president's expansion of DACA is now on hold.
  2. Parents with children who are either US. citizens or green card holders. The parent must have lived in the US. for at least 5 years.
    • They must also pay taxes.
    • These people will have to register and pass both a criminal background check as well as what the administration calls a "national security" background check.
    • Parents who are not authorized, but have children with legal status. (e.g. An unauthorized resident whose child is a US. citizen or green card holder.) 

What's an executive action?

An action the president can take without input from Congress. The president has this power over matters pertaining to the enforcement of existing federal law. With respect to immigration, the President cannot on his own award someone legal status or US. citizenship. That would take a new law passed by Congress. But the president can prioritize who actually gets deported by the agencies under his authority. The main issue of the current lawsuit against the president is where prioritization ends and creating law new begins.

Why can't Congress pass a new law?

They don't want to. While the Senate passed an immigration reform bill during the last Congress, the Republican-controlled House of Representatives sat on it, effectively killing the bill. While some prominent Republicans are open to reform, most of the conservative base is stridently against it.