The party over executive action seems to have fizzled out even before it started.
As expected, late Monday, February 16, Judge Andrew Hanen issued a temporary injunction against the implementation of two parts of President Obama Administration’s executive actions on prosecutorial discretion in immigration: an expansion of the current deferred action for childhood arrivals (DACA) program, and a program for the parents of U.S. citizens (DAPA).
The federal district court did not decide on the constitutionality or legality of the programs, but rather, took issue with the fact that the Obama Administration had not followed proper procedures under the Administrative Procedures Act (APA), in rolling out the programs. The Justice Department is expected to appeal this ruling and to request a stay of the injunction so that the initiatives aren’t stalled.
While much has been written about how Judge Hanen reached an erroneous decision when he determined that the federal government had to allow for a notice and comment period, no one is actually talking about the fact that the National Day Labor Organizing Network had filed a complaint requesting that the government engage in rule-making with regards to executive action, more than a year before the executive actions were announced. This was a request for formal rule making of the kind that Judge Hanen found lacking from the executive actions announced on November 20, 2014.
The government seems to have not responded to the NDLON complaint, and never bothered to publish a formal notice in the Federal Register when it did announce changes to its prosecutorial discretion programs. If they had, perhaps things would have turned out differently last week. Perhaps not. In any case, the Obama Administration has a major “foot in mouth” problem, and perhaps before embarking on future partisan events to drum up support for his programs, someone should ensure that the intern does send over a copy of the proposed rule change to the Federal Register.
What’s next? Now that the brakes are on, the legal teams on both sides seem to be up against months, if not years, of litigation. That may bode well for the politicos, but not for undocumented immigrants who would have benefited from these programs.
Most talking points sheets say that people should continue preparing for the programs. Sure, that is true. But more importantly, the new enforcement priorities announced on November 20, 2014, remain in place. So if you think the Administration is still detaining and deporting people that it has no business doing, continue raising hell, and continue asking for a more expansive definition of discretion.