Feb. 25--When President Barack Obama decided to grant a measure of protection to as many as 5 million foreigners who are in this country without authorization, he was taking a risk. The executive action he took in November, after all, was something he had earlier said he lacked the authority to do. It was never clear the courts would give him a pass.
At least one has not. Last week, a federal judge in Brownsville, Texas, ruled that his Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) was invalid and blocked its implementation. For the time being, the beneficiaries, who sighed with relief when Obama announced DAPA, will be holding their breath.
The administration view is that since it can't find and expel all those here without documentation, it has considerable latitude in its enforcement and deportation efforts. As the U.S. Supreme Court has said, "A principal feature of the removal system is the broad discretion exercised by immigration officials."
In 2012, the Obama administration said it would not expel undocumented immigrants who came here as children, are attending or have graduated from high school or joined the military, and haven't committed crimes. Last year, with DAPA, the administration went further still -- shielding adults whose children are American citizens or have permanent resident status.
Texas and 25 other states that sued over the order, however, believe Obama went far beyond this authority, to the point of rewriting federal law. U.S. District Judge Andrew Hanen agreed. Besides forgoing enforcement against some people who lack legal status under the Immigration and Nationality Act (INA), the federal government offered them work permits and Social Security numbers.
"Instead of merely refusing to enforce the INA's removal laws against an individual, the (Department of Homeland Security) has enacted a wide-reaching program that awards legal presence to individuals Congress has deemed deportable," Hanen wrote. Since this shift amounted to a new regulation, DHS had a duty to give notice and ask for public comments before making it final. Its failure to do so, the judge said, violated federal administrative law.
The case turns on obscure and technical questions on which legal experts disagree. How it will be resolved on appeal is anyone's guess. But this decision is likely to leave the affected people in limbo.
The Justice Department has asked for an emergency stay of the order. But even if an appeals court allows the plan to go forward while the court fight proceeds, the Supreme Court could eventually overrule DAPA. Putting the program through the notice and comment process would delay it for several months, if not longer. For now, uncertainty prevails.
But a couple of things are clear. One is that under a sensible, humane immigration policy, the people Obama would allow to stay would be allowed to stay. Another is that this questionable executive action could have been prevented if Speaker John Boehner had allowed the House to vote on a comprehensive immigration bill that passed the Senate in 2012 with bipartisan support.
Obama may have overstepped his powers, but he acted on the legitimate belief that our immigration policy was broken. It still is. The courts may not fix it. Congress and the president can and should.
