- The Washington Times - Tuesday, February 17, 2015

Judge Andrew S. Hanen ruled that President Obama’s policies have left the border less secure and invited illegal immigrants into the U.S., but the judge said it was the administration’s own attempts at slicing and dicing convoluted immigration laws that left him with no choice but to halt the president’s deportation amnesty.

The 123-page ruling, issued late Monday, did not reach the weighty constitutional issues that congressional Republicans were seeking. Judge Hanen instead ruled that he never needed to decide on those matters because he was able to conclude that Mr. Obama broke a regular law, the Administrative Procedures Act, by creating a major policy without following all the steps for public review and comment.

Just as critical, Judge Hanen ruled that Texas and more than two dozen other states had standing to bring the lawsuit in the first place because of the burdens they would face, including millions of dollars spent issuing driver’s licenses and other public benefits to illegal immigrants. Without standing, the entire case would have been moot.

Even without reaching the major constitutional issues, Judge Hanen signaled that he thought Mr. Obama and Homeland Security Secretary Jeh Johnson, who are charged with carrying out the laws written by Congress, went further by taking on the law-writing power themselves.

“The DHS was not given any ‘discretion by law’ to give 4.3 million removable aliens what the DHS itself labels as ‘legal presence,’” Judge Hanen wrote. “In fact, the law mandates that these illegally-present individuals be removed. The DHS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.”

Mr. Obama said his administration will appeal. White House officials said they may even ask for an emergency stay that would halt the injunction and let the amnesties go into effect. The officials said a final decision on requesting a stay should be made in the next few days.

In his ruling, the judge repeatedly questioned the Homeland Security Department’s figures and pointed out that they were relying on a 2009 estimate of illegal immigrants in the U.S. He also said several times that their arguments were “disingenuous” and mentioned Mr. Obama’s declaration in November that he had taken action to “change the law” as evidence that the policies weren’t mere guidance but were meant to be more substantive.

In one footnote, Judge Hanen said the Homeland Security Department issued conflicting guidance in November, saying in one memo that all illegal immigrants are still deportable and could be priority cases, even as another memo specifically ordered them not to be kicked out. It even ordered immigration agents to drop existing cases against illegal immigrants who might meet the new criteria.

Judge Hanen said the administration was trying to have it both ways by telling him that Texas was under no obligation to issue driver’s licenses to those approved for the amnesty but telling a federal appeals court in California that states must issue the driver’s licenses or be deemed discriminatory. Judge Hanen sided with Texas in that dispute.

The judge also weighed in on bigger policy issues, officially finding that Mr. Obama’s immigration strategy has created some of the very problems the administration says it is trying to combat.

“The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country,” Judge Hanen wrote. “Further, the record supports the finding that this lack of enforcement, combined with this country’s high rate of illegal immigration, significantly drains the states’ resources.”

The ruling Monday confounded legal analysts who backed the administration and who said Mr. Obama was following the well-trod footsteps of presidents who had issued similar stays of deportation for people whom Congress wouldn’t grant full protection.

Immigrant rights groups, who had been working for weeks to undermine Judge Hanen by accusing him of bias, said his ruling bore out their fears.

“This decision, by a judge notorious for his hostility to immigrants and to Obama, will not stand,” said Frank Sharry, executive director of America’s Voice. “As it moves up the judicial ladder, serious jurists will apply the law, decide that it is well within established legal authority and historical precedent, and the programs will be fully implemented.”

In court papers, and in a hearing last month, the administration defended Mr. Obama’s policies as a natural progression of the president’s prosecutorial discretion powers. Attorneys argued that Congress allocates only a fraction of the money it would take to deport all illegal immigrants, so it makes sense for Mr. Obama to set priorities for whom to target with those limited resources, and illegal immigrants who have been in the country a long time, have some family ties and have no serious criminal records shouldn’t be forced out.

Judge Hanen said Mr. Obama went too far in creating a program to allow for illegal immigrants to apply for proactive lawful status but ruled that the president does have full discretion not to deport. That is a significant victory to the president because it means that the 4 million or more illegal immigrants Mr. Obama deemed eligible for amnesty are not likely to be deported during his term in office even if they are unable to obtain work permits.

Judge Hanen is the second federal judge to rule against Mr. Obama’s policy, though his decision was by far the most thorough examination. A federal judge in Pennsylvania ruled in December that the president acted unconstitutionally, though that judge was deciding the case of a single illegal immigrant and didn’t halt the president’s policies.

A federal judge in the District of Columbia threw out a challenge to Mr. Obama’s amnesty, arguing that the plaintiff, Maricopa County Sheriff Joe Arpaio in Arizona, didn’t have standing to sue. The judge in that case never decided on Mr. Obama’s policies, though she leaned toward accepting the administration’s argument that it was using proper discretion.

White House officials Tuesday pointed to that D.C. court move, saying it bolsters their belief that they will eventually prevail.

“We believe we are on very solid legal ground here,” said Cecilia Munoz, Mr. Obama’s chief domestic policy adviser. “We’re going to appeal, we expect to prevail legally and we will be ready to implement these programs.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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