Executive Action Non-Enforcement of the Law Takes a Legal Hit

This article was last updated on May 25, 2022

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On February 16, a federal judge in Texas enjoined the administration from "enforcing" the myriad executive actions that were announced with much fanfare and a national televised address by the president last November. (The 3-page injunction is here, while his 123-page ruling is here.)

This is no small irony since, in essence, the executive actions involved directed the various immigration agencies of the Department of Homeland Security (DHS) to not to enforce the law and, instead, to provide a panoply of benefits to upward of five million aliens living and working unlawfully in the United States.

Of course, since the announcement of the executive actions, there was a snowballing of the kinds of benefits that such aliens would receive in addition to the bare-bones "right" to be legally present in the country for the next several years: the right to work, the right to petition to bring in certain other relatives outside of the United States, the right to collect earned income tax credits, and the right to parole so that these individuals could come and go as they choose. In other words, they would be indistinguishable in most respects from lawful permanent resident aliens whose presence is authorized by law, and for whom there is a clearly recognized statutory and regulatory system of checks and balances in place.

Many observers believe that the president and his cabinet overstepped the boundaries both of the law and Constitution; see, for instance, "President Obama's 'Deferred Action' Program for Illegal Aliens Is Plainly Unconstitutional", published by the Center in December.

A number of members of Congress agreed, prompting House Speaker John Boehner to promise a lawsuit against the chief executive, which has never quite materialized. Instead, it fell first to a thoroughly dissatisfied employees' union of immigration agents, only to be told that they had failed to exhaust their administrative remedies. And when that suit stalled, it was a body of 26 states that filed suit, alleging that the actions of the president would result in real and tangible harm to the states and their respective citizens.

In ruling on behalf of the plaintiffs, the judge has basically held that were he not to issue the restraining order, the states would be permanently harmed because it would be impossible to turn back the hand of time once the benefits to be accorded by the executive actions started being granted in earnest — benefits that will have a real and adverse impact upon those states' financial, police, emergency, educational, and social service capacities.

Some pundits are speculating that House and Senate Republican leaders may attempt to use the judge's order to jettison the current impasse over a long-term fiscal year spending bill for DHS. Let's hope they don't, because it's early days yet. The parties have been directed by the presiding judge to meet, ostensibly to discuss a plan so that the executive branch can comply with the Administrative Procedure Act (one of the deficiencies pointed out by the judge in ruling against the executive actions, and in issuing the injunction — something this author has observed repeatedly in past writing; see, for example, here and here).

In the meantime, the case is winding its way toward the Fifth Circuit Court of Appeals, where the executive branch hopes to have the order dissolved so that it can be merrily on its way about the business of amnestying millions in contravention of the statutory scheme.

But it's a near certainty that, whatever happens at the Fifth Circuit, from there it will end up before the Supreme Court. And that is where it has belonged all along. It's a shame, though, that the states had to carry congressional water in a matter that so clearly involves their interests, since they are the branch invested by the Constitution with law-making powers of the type the president has arrogated to himself.

There is, by the way, one interesting footnote. Careful observers will note that the secretary of state is not among the defendants to this lawsuit. I mention this because a little-known aspect of the series of executive actions is one that involves setting up so-called "refugee" centers in the Central American countries that were the source of last year's surge of illegal border-crossers in the Rio Grande Valley of Texas. One wonders whether the administration will have the chutzpah to continue with that program under the circumstances — but we can examine that in more detail in another blog.

In the meantime, savor the moment. Maybe, just maybe, the "third" branch will show the kind of moxie that we haven't seen out of the Congress in ensuring that our tripartite system of checks and balances can work even in the face of blatant Caesarism.

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