Q&A: What Happens Now in the Legal Fight Over Obama’s Plans?

The court fight over President Barack Obama’s plan to shield as many as five million immigrants from deportation involves a number of complex legal issues. U.S. District Judge Andrew S. Hanen in Texas issued an order late Monday at least temporarily blocking the program from going forward.

Here are answers to some frequently asked questions about the case and the ruling.

What would the administration’s program do?

The program would “defer action” for a large class of immigrants currently in the country without legal authorization. They would not receive citizenship or legal status, but would not be at risk of deportation so long as the deferred action remained in effect. Under rules that have been in place for many years, immigrants with deferred-action status are also allowed to work legally in the U.S.

What legal authority does Obama claim for deferred action?

The government has had some form of deferred action since at least the 1960s. Executive branch officials have argued — and courts have agreed — that the president and the executive branch agencies that work under him have significant discretion over which immigrants to deport. The legal justification is that the government has limited resources and that federal agencies can set priorities.

“The decision to prosecute or not prosecute an individual is, with narrow exceptions, a decision that is left to the executive branch’s discretion,” Hanen agreed in his opinion Monday.

What’s the legal argument on the other side?

Discretion isn’t unlimited. The government can’t completely rewrite the law under the guise of setting priorities. The legal issue is whether Obama’s program is so big and far-reaching that it goes beyond what can be justified as executive discretion. The plaintiffs in the case before Hanen, 26 Republican-led states, have a strong case that the administration did go too far, the judge ruled.

The administration cannot “establish a blanket policy of non-enforcement that also awards legal presence and benefits to otherwise removable aliens,” the judge wrote. The executive branch has “discretion in the manner in which it chooses to fulfill the expressed will of Congress” but cannot set up a program that “actively acts to thwart” what Congress intended, he wrote.

Did the judge make a final ruling on the case?

No. Monday night’s ruling said that the states could take their claim to a full trial, which might not take place for months. In the meantime, the judge issued an injunction blocking the administration from starting the new deferred-action programs.

“There will be no effective way of putting the toothpaste back in the tube” if the government starts granting immigrants deferred status, the judge wrote.

What happens now?

The government has said it will appeal. The case would go to the U.S. 5th Circuit Court of Appeals, which could decide to leave Hanen’s preliminary injunction in place until the judges of that court can hold a hearing on the matter. The appeals court could also dissolve the injunction.

This article appeared in print in the February 18th, 2015 edition of Hamodia.