But don’t get too excited yet. It’s just one judge in Texas, and it’s sure to be appealed.
However, this illustrates once again how important federal judge appointments are; they can determine the future no matter who a subsequent president may be. The judge in this case was a Bush appointee, and I can almost guarantee that if the decision is later reversed it will be by courts with majority Democratic appointees. Elections matter for a lot of reasons, and one of them is that they determine the makeup of the judiciary that later either upholds or overturns actions of the executive or legislative branches when they are challenged.
The present injunction was granted not on constitutional grounds (on which the judge did not rule one way or the other) but procedural ones:
The basic argument from the states that Hanen favors isn’t one about constitutional improprieties (he doesn’t get to that question, which the states have raised); it’s that the Department of Homeland Security has effectively created a whole new program and procedure without following any of the legally necessary steps. The Obama administration’s use of deferred action amounts to new rulemaking, Hanen suggests, because there’s so little evidence that the system, based on DACA, involves case-by-case discretion, as the feds claim it does.
More here from the decision itself:
The DHS cannot reasonably claim that, under a general delegation to establish enforcement policies, it can establish a blanket policy of non-enforcement that also awards legal presence and benefits to otherwise removable aliens. As a general matter of statutory interpretation, if Congress intended to confer that kind of discretion…to apply to all of its mandates under these statutes, there would have been no need to expressly and specifically confer discretion in only a few provisions…
…This Court finds that DAPA does not simply constitute inadequate enforcement [which would most likely not be reviewable, according to Heckler], it is an announced program of non-enforcement of the law that contradicts Congress’ statutory goals…
…The DHS does have discretion in the manner in which it chooses to fulfill the expressed wish of Congress. It cannot, however, enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them.
Actually, if you look at Heckler—the case the Court cited as limiting judicial review of administrative non-enforcement questions, and with which I was previously unfamiliar—you will see that in that ruling, which concerned the use of certain drugs for executions rather than anything nearly as sweeping in scope as the current case, the Court listed some important exceptions: [emphasis mine]:
…the presumption of unreviewability [established by the case] is rebuttable where (1) an agency declines to act based “solely” on its belief that it lacks jurisdiction, or (2) where an agency “consciously and expressly” adopts a policy that is so extreme that it represents an abdication of its statutory responsibilities.
Will this new ruling on amnesty matter to the dilemma the current Republican Congress is facing over blocking amnesty funding by tying the question to the DHS funding bill? Perhaps, although it certainly doesn’t eliminate their problem. William A. Jacobson of Legal Insurrection explains what Congress might want to do now:
From a political perspective, if Obama is enjoined from enforcing his immigration executive action, how can Congress fund an illegal act? Or if it were funded, thereby relieving the current continuing resolution stalemate, Obama could not enforce it. Either way, this may provide Congress a way out of the jam just days before the funding deadline.
What this allows Republicans to do, is pass a 30 day spending bill without any limitations on the argument that the immigration plan cannot be acted upon anyway, and wait and see how the courts rule. IF the courts refuse to put the injunction on hold, or if the courts uphold the injunction on the merits, then there is no need to worry about defunding the executive action. If an appeals court reverses, then the Republican leadership can say that it has already been upheld as lawful so there is no legal basis for the claim it is unconstitutional. This could be a victory at least to get over the current impasse, although it may not be a long term solution.
Let’s see if Congress listens to that advice.
[ADDENDUM: Oh, and of course the majority of Americans would blame the GOP for any DHS funding block, not Obama, and feel that a DHS shutdown would be a problem or crisis. The MSM and the Democrats appear to have been very effective in their propaganda of glossing over the fact that it is the Democrats who would actually be blocking the DHS funding. I’d like to see how the questions were framed in the poll—this can greatly influence results—but I can’t seem to find a link to the actual questions that were asked.
Here is some initial Republican reaction to the federal ruling. I’ll add that if any Republicans think the Democrats will now relent on any aspect of their stand on this, those Republicans are sadly mistaken.
Of course, the entire issue is clouded by the fact that the Republican Party is itself split on the issue of tying DHS funding to amnesty funding, as well as illegal immigration and what to do about it in general. What a mess.]
[ADDENDUM II: A good legal analysis here.]


