Judge: Exec Amnesty Genie ‘Impossible to Put Back in Bottle’ Without Injunction; Feds Creating Laws from Scratch, Abdicating Enforcement

AP Photo/Mark J. Terrill
AP Photo/Mark J. Terrill

On Monday evening, a federal judge in Texas temporarily halted President Barack Obama’s executive amnesty, reasoning that the Department of Homeland Security did not adhere to the Administrative Procedure Act and Obama’s executive amnesty genie would be “impossible to put back into the bottle” without an injunction.

In a 123-page opinion, Texas judge Andrew Hanen determined that since at least one state (Texas) “stands to suffer direct damage from the implementation” of Obama’s executive amnesty, the states had requisite standing. A majority of the states (26) sued the Obama administration, alleging that the Department of Homeland Security’s immigration directive “will cause significant economic injury to their fiscal interests.” Hanen agreed, specifically pointing out that Texas would potentially be burdened by having to issue driver’s licenses to illegal immigrants who receive temporary amnesty. He emphasized that “many states ultimately bear the brunt of illegal immigration,” especially those whose resources are drained due to “severe law enforcement problems” and “domestic security issues.”

Hanen found that the Department of Homeland Security “legislated a substantial rule without complying with the procedural requirements under the Administrative Procedure Act” because the executive amnesty provisions did not undergo “notice-and-comment rule making procedure.” He concluded that the Department of Homeland Security is “not rewriting laws,” but “creating them from scratch.” And he determined that Obama’s executive amnesty is a “complete abdication” of immigration enforcement.

The injunction, according to Hanen, is necessary because it is a remedy that would prevent an injury to the states that was directly caused by the actions of the federal government. He determined that if an injunction were not issued, it would be “virtually impossible” to to stop the implementation of Obama’s executive amnesty even if a court later found it to be illegal or unconstitutional.

“The court agrees that, without a preliminary injunction, any subsequent ruling that finds DAPA unlawful after it is implemented would result in the States facing the substantially difficult–if not impossible–task of retracting any benefits licenses already provided to DAPA beneficiaries,” Hanen wrote. “This genie would be impossible to put back in the bottle.”

He noted that delaying Obama’s executive amnesty “poses no immediate harm to the defendants,” and that any injury to the federal government, “even if DAPA is ultimately found lawful, will be insubstantial in comparison to Plaintiffs’ injuries.”

“The situation is not such that individuals are currently considered ‘legally present’ and an injunction would remove that benefit; nor are potential beneficiaries of DAPA–who are under existing law illegally present–entitled to the benefit of legal presence such that this court’s ruling old interfere with individual rights,” Hanen wrote. “It is far preferable to have the legality of these actions determined before the fates of over four million individuals are decided. An injunction is the only way to accomplish that goal.”

Hanen noted that given the Obama’s administration’s enforcement priorities, “there is no reason to believe” illegal immigrants who qualify for Obama’s executive amnesty will be deported. He even pointed out that if his court denied the injunction, there could be “dire consequences” for illegal immigrants who come out of the shadows–and register with the federal government–if the executive amnesty is later found to be unconstitutional or illegal.

“The DHS–whether this administration or the next–will the have all the pertinent identifying information for these immigrants and could deport them,” Hanen wrote.

The Obama administration is expected to appeal the ruling to the 5th Circuit Court of Appeals and the case may well end up in the Supreme Court.


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