The Illegal Immigrant Case Will Take Obama's "Government by Executive Order" Constitutional Question to the Supreme Court

The battle over President Barack Obama's executive order granting up to 5 million illegal immigrants the right to stay in the US and to receive work permits is rapidly becoming a procedural and cobstitutional battle in federal courts. ~~~~~ The Obama administration has announced that it will seek an emergency court order to allow it to move ahead with President Obama’s executive action on immigration. Officials at the Department of Justice (DOJ) plan to seek an emergency stay that would essentially undo a federal judge's injunction issued in Texas earlier this week. If the stay is granted, the government could restart two executive programs that will shield millions of undocumented immigrants from deportation. White House press secretary Josh Earnest said DOJ will file its request for a stay by "Monday at the latest." Immigrant rights advocates who want to get the programs up and running as soon as possible while the appeals process plays out have urged the Obama administration to seek the emergency stay. "We - as immigrants and as Americans - have waited for nearly a quarter century for these much-needed improvements to our broken immigration system," Marielena Hincapié, head of the National Immigration Law Center, said Friday in a statement. "We should not allow a flawed legal decision to delay these changes any longer.” Obama spokesman Josh Earnest said : ”Making good on earlier vows, DOJ will also file a separate appeal seeking to restart the executive programs. We will seek that appeal because we believe when you evaluate the legal merits of the arguments, that there is a solid legal foundation for the President to take the steps he announced last year to help reform our immigration system.” ~~~~~ At issue are two new initiatives launched unilaterally by Obama on November 20. The first expands eligibility for the President's 2012 Deferred Action for Childhood Arrivals (DACA) program, which halts deportations and allows work permits for certain undocumented immigrants brought to the country as children. The second, known as DAPA, would extend similar benefits to the parents of US citizens and permanent legal residents. Combined, the programs could affect as many as 5 million immigrants living in America illegally. Many states, however, objected and filed a lawsuit to halt Obama proceeding. Texas, joined by 25 other states, say in their lawsuit that the programs was an abuse of executive authority that would cripple their budgets with exorbitant new costs. In a decision announced on Monday, US District Judge Andrew S. Hanen agreed, arguing that the administration failed to comply with a federal law governing the adoption of new federal rules. Hanen has not yet ruled on the merits of the states' complaints, but said they have a significant enough case that both the DAPA and expanded DACA programs should be put on hold until the legal challenges are resolved, adding that if the injunction were not ordered, yhe damzge would be irreparable - illegals would receive their documentation. The effects of Judge Hanen's decision were immediate -- administration officials announced that they would not begin accepting applications for either program until the court decisions are final. Before the ruling, the Homeland Security Department was poised to begin accepting applications for the expanded DACA program this week, and for the DAPA program in May. Both have been suspended indefinitely, although some illegals had already filed and paid the required $565 fee. Hanen's injunction does not affect the original DACA program, which remains in effect. ~~~~~ But, President Barack Obama and his administration face a difficult and lengthy legal battle to overturn Judge Hanen's ruling that blocked Obama's massive immigration overhaul, since the judge based his decision on an unsettled area of administrative law, ruling that Obama did not give public notice of his plans. The failure to do so, Hanen wrote, was a violation of the 1946 Administrative Procedure Act, which requires notice in the Federal Register, where all federal rules and regulations must be published and time given for public comments to be submitted in writing. Comments are also then published in the Federal Register. The ruling was an initial victory for the 26 states that brought the case alleging Obama had exceeded his powers with executive orders that would let up to 5 million illegal immigrants remain in the US without threat of deportation. Hanen's ruling added to the disarray surroundng US policy toward the 11 million people in America illegally. Obama said on Tuesday he disagreed with the ruling and expected his administration to prevail in the courts when the DOJ files an appeal of Hanen's temporary injunction to the 5th US Circuit Court of Appeals in New Orleans. ~~~~~ There is, however, the matter of other writings in Judge Hanen's opinion. Hanen wrote that "the states have clearly proven a likelihood of success on the merits" of the case. He also wrote that it was "disingenuous" for the administration to maintain that Obama's actions merely "supplements and amends" current policy, writing : "It represents a massive change in immigration practice, and will have a significant effect on, not only illegally present immigrants, but also the nation's entire immigration scheme and the states who must bear the lion's share of its consequences." Republicans argue that Obama often has overstepped his presidential authority in other areas, including US-Cuba policy and changes in his signature healthcare law. But, in working to halt Obama's moves on immigration, the GOP risks further alienating Hispanic voters. ~~~~~ However, the real problem for the GOP is in the Senate, where 60 votes are needed to bring the budget bill for DHS to the floor for debate and a vote. It requires that five Democrats join the Senate Republicans to reach the 60 votes needed, but they prefer to let the DHS budget bill languish because it contains provisions that defund the Obama illegal immigrant initiative. Senate Democrats hope that the GOP wil be blamed for playing politics with US security, although in reality it is the Democrats who are doing so. Republicans say there will be no interruption in the homeland security agency's critical protective missions even if the budget bill is delayed. ~~~~~ Dear readers, whatever happens in the Fifth Circuit Court of Appeals, the losing side will certainly appeal to the US Supreme Court, probably asking for an expedited hearing. So, we could have a definitive result by mid-summer. And, since US District Judge Hanen avoided deciding the sweeping constitutional questions inherent in the Obama executive orders that amend federal law without congressional action, or directly deciding whether Obama overreached his presidential powers, the Supreme Court will surely be asked to decide these fundamental constitutional questions, too. Stay tuned because there is a complex process ahead of us.