Federal Judge Andrew Hansen delivers the injunction on the President’s Amnesty Program.
In this case, the ruling is that the DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program (which is what Secretary Jeh Johnson was attempting to implement) is not a rule, but a legislative attempt that requires review:
In sum, this Court finds, both factually based upon the record and the applicable law, that DAPA is a “legislative” or “substantive” rule that should have undergone the notice-and-comment rule making procedure mandates by 5 USC § 553. The DHS was not given any “discretion by law” to give 4.3 million removable aliens what the DHS itself labels as “legal presence.” … In fact, the law mandates that these illegally-preset individuals be removed. The DHS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.
In this case, the States offered two main thrusts: The memorandum for the program published by Secretary Johnson violated the Administrative Procedure Act (“APA”) if it is a rule, and that the Rule itself violates the Article 1 of the Constitution for creating a new law.
Its pretty clear in the opinion that the arguments made by the Government may have been sabotaged by the Arizona ruling, in which the Government forced Arizona to give licenses to illegals as part of the implementation of the program, and given weight to the injunction. Since the Government won that case, it was hamstruck in being able to be more flexible in that the Government was forcing the states to accept a burden in implementing the program to give services and cover those costs.
In addition, the Government’s argument that DAPA was unreviewable, as it was part of “prosecutorial discretion” of immigration enforcement, was found to be unpersuasive. As quoted above, the program is trying to give legal status to millions of illegals that is outside its authority under the law. That may very well doom the program when it goes to trial and its constitutionality seems to be in doubt. Of course, it doesn’t help that the opinion itself contains quotes from President Obama, who basically said he was “changing the law.” This after telling everyone he couldn’t. Apparently, the court agrees that is exactly what he did.
This leaves the Senate Democrats in a precarious position. If they continue to deny funding to DHS for a program that is likely to be considered unconstitutional, then this falls squarely on their shoulders for any government shutdown. Since a majority of Americans oppose this amnesty program, and if I were McConnell, I would vote on it every hour of every day, 24/7, until they let it go to a vote. Then it would leave only the Presidential veto and the golf swing. Perhaps Senator McCain could stop conceding behind a microphone and go strong arm some Democrats. The opportunity to win a major political moment is here and now.
Of course, there is always the chance the injunction will get overturned. It will be interesting to see if the Fifth Circuit court in Louisiana will stay or leave the injunction in place considering the merits. For certain, the next few weeks will be interesting. I predict the Democrats will ramp up the attack machines and try to get the press to give them some cover. That’s probably too easy a bet.