The states challenging President Obama’s deportation amnesty have already won the first round in court after the case landed in the lap of Judge Andrew S. Hanen, a Bush appointee who issued a scorching rebuke to the Department of Homeland Security last year, accusing it of refusing to follow border security laws.
It could hardly have been a worse outcome for Mr. Obama, who, in order to preserve his policy, will now have to convince a judge who is on record calling his previous, less-extensive nondeportation policies “dangerous and unconscionable.”
Led by Texas Attorney General Greg Abbott, the 20 states challenging the new policy filed their case in Brownsville. It could have gone to one of two judges — the other a Clinton appointee — but it landed in the lap of Judge Hanen last week, putting Mr. Obama on the defensive early.
“It’s the Constitution itself that is under assault by the president of the United States by this executive order,” Mr. Abbott told NBC’s “Meet the Press” this weekend. “This lawsuit is not about immigration. The issue in this lawsuit is abuse of executive power.”
Analysts on both sides of the issue said Mr. Obama’s opponents were fortunate to draw Judge Hanen, who has already shown a deep distrust of Homeland Security officials, questioning both their policies and their legal arguments.
In a 10-page order last December, just as the surge of illegal immigrant children was beginning, he blasted the Obama administration for refusing to get tough on enforcement and instead shipping children caught at the border to live with their illegal immigrant parents here in the U.S. — and refusing to even try to deport those parents.
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“The DHS should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not,” Judge Hanen wrote. “Even worse, it is helping those who violate these laws.”
Judge Hanen, who took his spot in the federal bench in 2002, was quick to say in his order that he didn’t take a “position on the topic of immigration reform,” but said he was dismayed at “the failure by the DHS to enforce current United States law.”
Even more striking was his reasoning: Judge Hanen said the government was wasting money, not saving it, by refusing to deport illegal immigrants and instead paying to connect children and their illegal immigrant parents.
The states that sued to halt Mr. Obama’s policy say they too will incur hundreds of millions of dollars in costs if they have to police, educate and provide care for the thousands of new illegal immigrants they expect to be enticed to enter the U.S. illegally based on the new amnesty. The states argue they have been injured by Mr. Obama’s order — or, in legal terms, have “standing” to sue in court — because of those economic consequences.
A number of legal experts, however, doubt that will be enough to convince a judge to take the case.
“It’s not enough to say you would be harmed. You have to prove it with evidence,” said Stephen H. Legomsky, a professor at the Washington University School of Law.
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Mr. Legomsky spent two years as chief counsel at U.S. Citizenship and Immigration Services during the time when that agency was implementing Mr. Obama’s deferred action policy for “dreamers” — which was the testing ground for this year’s broader policy — and the professor said both have solid legal underpinnings.
First, the states would have to prove conclusively that Mr. Obama’s program will lead to a new surge in illegal immigration — something that is speculative. Mr. Legomsky said another federal court has already rejected that argument in a challenge to the “dreamer” policy.
He also said the drafters of the policies, known in the immigration world as “deferred action,” were careful to make sure that nobody has a right to tentative legal status. Each case is supposed to be reviewed carefully by an immigration officer, who is to use discretion.
Speaking Sunday, Mr. Abbott said he believes the fiscal impact on states will be enough to earn a day in court.
And Kris W. Kobach, secretary of state in Kansas and one of those who has been instrumental in devising legal attacks on Mr. Obama’s immigration enforcement policies, said there are other potential challengers as well.
Mr. Kobach said a U.S. citizen who could show he lost in a job competition to one of the newly legalized workers under the amnesty could also go to court — if he could prove that he lost the job specifically because of competition with an illegal immigrant.
“The trick, of course, is establishing that,” he said.
Mr. Kobach also said immigration agents who enforce the law could have standing to sue over the new policy.
He is leading a previous case filed by immigration agents that challenged Mr. Obama’s 2012 amnesty for “dreamers.” In that case a judge ruled that the administration did likely break the law — but the judge also ruled he didn’t have jurisdiction over the case since another part of the law said the agents needed to take their complaints to a personnel board, not the federal courts.
Mr. Kobach and the agents are fighting that case in the personnel board, and both he and the Obama administration have also appealed the initial judge’s ruling to the 5th U.S. Circuit Court of Appeals.
That case is tentatively slated for oral arguments on Feb. 2.
In the Texas case, Judge Hanen has set a pretrial conference for March 31.
To win their case, opponents must not only win standing but must also show the president acted outside his powers.
They argue Mr. Obama has gone broader than previous presidents in using his prosecutorial discretion, and they said the president gave them ammunition last month when he twice said during a speech he had taken action to “change the law” in halting deportation. The states, in their lawsuit, pointedly cited Mr. Obama’s comments as a prominent part of their complaint.
Mr. Legomsky, though, said that while the comments may present a political problem for the president, “from a legal standpoint it’s totally irrelevant.”
The professor said deferred action is explicitly authorized in statutes, regulations and in a long line of court cases, giving Mr. Obama solid legal backing.
The states aren’t the only ones to file a challenge to the latest Obama action. Maricopa County, Arizona, Sheriff Joe Arpaio filed a lawsuit just minutes after Mr. Obama announced his policy Nov. 20. That lawsuit is pending in District Court in Washington, D.C.
Both the states and Sheriff Arpaio have sought preliminary injunctions in their cases, hoping to head off Mr. Obama’s policy before it can get up and running. The administration envisions taking applications within 180 days.
Sheriff Arpaio’s lawsuit is being heard in Washington by Judge Beryl A. Howell, an Obama appointee.
Her immigration record differs from that of Judge Hanen. Earlier this year she issued a ruling in an open records case seeking documents on the construction of the border fence, and in her decision she speculated that construction of the fence could have a “disparate impact on lower-income minority communities.”