Can someone express an informed opinion about the Texas judge’s decision to enjoin the president’s actions on immigration that hit the news yesterday? Do the state’s have standing? Does the judge have a reasonable point? I think he’s pretty much definitionally engaging in “activism from the bench” (using the definition that an activist judge is one who decides a politically-wrought question in a way you don’t like).
I really don’t know what to think. I do think that a difference in degree is a difference in kind which is something that doesn’t seem to have occurred either to the president or those who support him.
Update
The editors of the Washington Post express their opinions:
TO THINK, as we do, that President Obama overstepped his authority by shielding more than 4 million illegal immigrants from deportation, with no assent from Congress, does not mean that a federal judge should have license to invalidate the president’s order on the basis of tendentious logic.
Yet that’s the effect of a ruling Monday by U.S. District Judge Andrew S. Hanen in Brownsville, Tex., whose well documented distaste for the Obama administration’s immigration policies explains why similarly predisposed Republican-led states turned to him for relief.
The judge, in issuing an injunction blocking the president’s order from taking effect, reached no conclusion on the constitutionality of Mr. Obama’s executive order — although there’s little doubt where he would come out on that question.
[…]
Putting aside the slapdash guesswork involved at arriving at the dollar cost of issuing driver’s licenses to an unknown number of prospective applicants — or the “harm†it would inflict on Texas and its $100 billion annual budget — the logic falls flat. By the judge’s reasoning, practically every immigration action by the federal government could be said to impose a cost of some sort on the states, and could therefore provide a basis for a lawsuit.
I’m no lawyer but I do think that the states should have the right to challenge federal actions that impose financial burdens on them, especially when the burdens are as high as those the president’s November proclamation are likely to impose. I’d be interested in the case law but, again, a difference in degree can be a difference in kind.
The editors of the Wall Street Journal put their opinions this way:
Our own view is that under dual federal-state sovereignty, states consent to such pre-emption via their representation in Congress, but the executive isn’t allowed to change the terms of this bargain except through duly enacted legislation under Article I.
Keep in mind that the editors of the WSJ in effect support open borders between Mexico and the United States. Under the circumstances that’s actually a pretty strong statement from them.
Not really familiar with this area of law, but the big SCOTUS decision on immigration is Plyler v. Doe (1982), which held that Texas could not preclude children of illegal immigrants from a K-12 education. The case didn’t deal with state standing, because the state was a defendant in the class action. But Justice Brennan, writing for the majority, did discuss the legitimate interests of states:
“Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.”
I interpret that to mean that a state could have standing if it demonstrates a specific economic impact or harm to state programs. (Plyler, by requiring state educational funding seems to make the case going forward) Second, the violation claimed by the state would have to be of federal law.
The judge found that the executive order probably violates the Administrative Procedures Act, which is a statutory violation and easier for a Court to defend than a violation of general principles in the Constitution. Haven’t read the decision, but I would not be surprised that if we assume standing, the executive order is probably partly illegal and partly within the executive’s discretion.
That’s the way I would see it. I would think it’s a pretty easy case to make. Unfortunately, simply because someone is a lawyer doesn’t mean that one is a good lawyer. There are precious few protections against poor representation.
Informed opinion? Certainly not me. I see that Doug has not yet written anything.
I do note, and I think it’s derivative of PDs notion that the ex action is ambiguous, that one shouldn’t be surprised that by the Administration going political and mocking the other side with notions of pens and phones that a political – activist judge shopping – response was inevitably baked into the cake. Another fine mess.
Again, I’m not a lawyer, but I think that the legal technical argument is known as Fuck You. Oh, yeah? FUCK YOU!
Take a look at Ilya Somin’s piece, Thoughts on the recent federal district court ruling against the administration’s new immigration policy over a Volokh. According to him, the fundamental flaw in the judge’s opinion is his — the judge’s– belief that the president’s act constituted a new law, and thus was subject to the provision of the APA calling for public comment. Shorter Somin: It wasn’t, therefore it wasn’t. (Ilya likes to point out that exempting hugh numbers of people from the provisions of federal law has been practiced by the feds for years: When was the last time you read about a pot bust of college students by the DEA?)
Browsing the first half of the Judge’s decision (on standing), much discussion is made of Massachusetts v. EPA, a case in which the SCOTUS ruled 5-4 that the state could bring a lawsuit against the President’s inaction on carbon dioxide and greenhouse gasses. It was the four liberal justices, plus Kennedy, and that suggests a broad standard of standing is being adopted, perhaps opportunistically, when dealing with states.
Massachusetts had a legitimate interest as a sovereign power in its air and land within its domain. Texas has an interest in reducing the imposition of costs imposed by the federal government in terms of driver’s licenses and primary/secondary education.
@sam, the Administrative Procedure Act issues are not really addressed by Somin, nor most of the commentors I read before this ruling. As a practical matter, it’s a smaller ruling that would require the Administration to submit its policy for notice and comment first. The delay could be the end of the policy under Obama’s watch. I wonder if the Administration is considering going through notice-and-comment while preserving its objection.
“the Administrative Procedure Act issues are not really addressed by Somin”
But PD he argues that the action is not the sort of thing that falls under the purview of the APA. On that basis, why need he to say any more than he does? Are we to say that each act of prosecutorial discretion by the executive is a “new law’ and thus….?
Obama’s executive actions and perspective, circumventing existing constitutional powers limiting the enactment of controversial agendas, has been demonstrated throughout his tenure in office — from Senate procedural changes to pass the PPACA, unilateral diminishment of the Welfare Reform Act, insidious presidential appointments to the NLRB, an EO to save Eric Holder in the F & F fiasco, and now his bold immigration edict which flies in the face of earlier statements he made, public opinion, and apparently 26 states.
Has he exceeded the boundaries of the APA, essentially created new law purely from his evolved interpretation of what his executive powers really allow him to do? My understanding is that Hanen’s ruling is simply putting a stop to the moving parts and by-products resulting from the implementation of the administration’s Immigration stance, until it can be further sorted out. What’s wrong with a further assessment of what impact this law will have on the states, rather than having it unfold fully with a myriad of unforeseen, unintended consequences?
@sam, he appears to be arguing the Constitutional issue (“take care” clause) that is intertwined in the judge’s ruling, but not essential to it.
The APA governs administrative rulemaking. The judge found that the Administration did not contest the notion that it was engaged in rulemaking or that the policy was a rule. That’s a pretty big concession, so big that I would not be surprised if it’s not entirely true.
The judge said that the Administration was arguing instead for an exception to notice-and-comment requirements for rules that are merely “interpretive rules, general statements of policy, or rules of agency organization, procedure or practice.” This is statutory language that courts have frequently interpreted. I am very familiar with Illinois judicial interpretations of similar state statutory language, but not the federal APA. I don’t think Somin does either; otherwise he would point out, here is how courts have defined “interpretive rules,” or “general statements of policy,” etc., etc.
Instead, he complains that others are others are articulating a “dubious distinction between ‘case-by-case’ discretion and more generalized policy judgments.” Um, that’s a statutory distinction made by the APA.
Well, see Cass Sunstein’s piece, Texas Misjudges Obama on Immigration. He concludes:
“Judge Hanen was right to focus on the APA and the technical requirements of the law. But he got the technical argument wrong.”
There is no legal analysis in that post.
What I want to see, and what should qualify as legal analysis, of the APA issue, is an identification of the key terms in the statute, cases construing them, and an evaluation of which cases are more instructive of the issue here. That’s pretty boring. And this is not the first time this issue has arisen. Constitutional law and separation of powers is sexy. I hope an actual analysis of statutory interpretation appears in the legal blogs at some point in time.
PD, are you an attorney?