"... the most important thing about the court ruling is what it doesn't do: decide whether Obama's executive actions were legal or constitutional."

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The one sentence you need to read to understand the big new court battle over immigration
By Dara Lind, February 17, 2015

On Monday night, federal judge Andrew Hanen temporarily blocked the Obama administration from rolling out two new programs allowing unauthorized immigrants to apply for protection from deportation. That's a big deal, at least in the short term — it means that relief is delayed for millions of people. And it may cause a chilling effect that damages the long-term success of these programs. But arguably, the most important thing about the court ruling is what it doesn't do: decide whether Obama's executive actions were legal or constitutional. Check out this sentence, buried in a footnote toward the end of the ruling:



The primary reason that Judge Hanen halted the executive actions was that he found that the administration hadn't properly followed the Administrative Procedures Act — which sets the typical procedure for making federal regulations. According to Cecilia Wang, Director of the Immigrant Rights Project for the ACLU, Hanen's ruling says that "if (the government) wanted to do these things, it should have provided notice in the Federal Register, with period for comment." But because the Obama administration didn't do that for these actions, the ruling says, it violated the law. (The other half of Judge Hanen's ruling, saying that the states were allowed to sue the federal government to begin with, was also really narrow.)

The first volley in a very long court battle

This doesn't mean that Judge Hanen believes that the deferred action programs are kosher. His ruling makes it clear that he thinks the federal government has abdicated its responsibility to enforce immigration law. And Josh Blackman, a professor at the South Texas College of Law who filed a brief on behalf of the states in this case, points out that Judge Hanen's arguments that the government violated the Administrative Procedures Act could also be used to argue that the government violated the "take care clause" of the Constitution — so he might be laying the groundwork for a future ruling that the programs are unconstitutional.

After all, Judge Hanen has been a vocal critic of President Obama's immigration policy. But while the rhetoric of this opinion is often fiery, the actual legal scope of the ruling — the part that matters going forward — is much more limited.

That's because this is the very beginning of a very, very long court battle, and everyone involved in the case understands that. From now on, the ruling stopping the deferred action programs will move up through the courts while Judge Hanen continues to consider the underlying questions. The states that sued the president are celebrating a temporary victory, and some Republicans in Congress are trying to use this as a reason Democrats should cave on funding the Department of Homeland Security. (Democrats aren't caving.) Meanwhile, immigration advocates are stressing that this is a "bump in the road" — as a way to prevent immigrants from getting spooked out of applying for deferred action in the future. As long as the president's executive actions remain in legal limbo, even on the narrowest of technical grounds, the threat to the long-term success of the programs is real.
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