State officials and allied activists are cautiously optimistic that a Thursday hearing will help a Texas judge issue a decision that would block President Barack Obama’s unpopular amnesty.
Officials in 25 states have a solid legal claim that President Barack Obama’s actions are unconstitutional, said lawyers working for the coalition of plaintiffs.
They’re also optimistic because the appeals court isn’t stacked with progressive judges, and because the judge has previously criticized the White House’s rollback of border enforcement, the lawyers told The Daily Caller.
The plaintiffs’ coalition is also diverse, which allows them to make a variety of legal claims, including some that vote-seeking politicians wouldn’t want to make, said Michael Hethmon, senior counsel at the immigration Law Reform Institute.
The stakes are high, partly because Obama’s Nov. 20 amnesty announcement is the only surviving portion of his two-year, top-priority second-term push to expand immigration.
Some Democrats are worried that any legal setback will cripple the amnesty program. Any unfavorable courtroom outcome could deter millions of illegals from filing for amnesty. Many illegals worry that their applications for amnesty could be used later to arrest and repatriate them.
“We need to convey the message that it is here to stay,” said Rep. Jared Polis, a wealthy Democratic politician from Colorado. On Tuesday, he joined other Democrats in a rally intended to boost illegals’ confidence in the amnesty program, according to The Hill.
The lawsuit gets a formal hearing in Brownsville, Texas on Thursday, when the judge can ask the various lawyers to explain aspects of their many written claims, which have already been delivered electronically to the judge.
Obama’s legal claim is also online. Federal officials say the president has the legal authority to offer work permits to five million illegals, and also to stop the required repatriation of nearly 12 million migrants living illegally in the United States.
The judge is U.S. District Judge Andrew Hanen, who was nominated to the court in 2002 by President George W. Bush.
The Texas lawyers who are leading the case wanted Hanen to be the judge, and so they filed their lawsuit in his two-judge district. By a fifty-fifty chance, the lawsuit was randomly assigned to Hanen.
That’s great for the plaintiffs, because the judge has already studied the administration’s immigration policies, lawyers said.
In December 2013, Hanen concluded in a prior case that the administration is unlawfully encouraging Mexican coyotes to illegally smuggle Latin American children to parents who were themselves living illegally in the United States. “Instead of enforcing the law of the United States, the government took direct steps to help the individuals who violated it… A private citizen would, and should, be prosecuted for this conduct,” he said.
The plaintiffs can win the first round of the lawsuit only if Hanen decides that they have standing.
To win standing, plaintiffs have to show they are being harmed and that they can win the lawsuit. “The states clearly have [legal] standing here,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, an organization working to help the plaintiffs.
To prove harm, the plaintiffs are making a constitutional claim that Obama lacks the constitutional authority to decline to enforce Congress’ immigration laws. “They’re saying the president doesn’t have the authority, the power under several authorities that he claims he has, to implement his …extra-statutory amnesty,” said Hethmon.
So far, they are not raising the harm done to Americans by Obama’s immigration policies. “State governments says this [case] is not about immigration [policies]… that’s telling,” said Hethmon. This is partly because business groups in these states support a greater inflow of migrants.
That’s where the team’s diversity is valuable — some of the plaintiffs’ legal allies say Obama’s immigration rollback is imposing economic costs on Americans.
If the judge decides the plaintiffs have standing and are likely to win the case, he must next decide whether to temporarily block the amnesty until he issues a final decision in the lawsuit.
“There will be enormous pressure for him to do it sooner,” said Hethmon. “These programs are going to go into effect in February, and if people are granted benefits, how do you undo that?”
To win that injunction, the plaintiffs must show that they will be irreparably harmed if the amnesty begins before the lawsuit is concluded, said Hethmon.
“The facts will be very important here,” said Sekulow.
The plaintiffs should be able to persuade the Texas judge to impose an injunction because there’s plenty of evidence that Obama’s rollback of immigration enforcement will harm state residents, he said.
For example, one 42-page document from the Texas government’s state demographer argues that Obama’s amnesty plan will force Texas taxpayers to provide expensive drivers’ licenses to illegals. A 790-page document said that Texas would be forced to provide costly medical care to more illegals. In 2008, the state paid $717 million when providing health-care to illegals, said the document, which was prepared by Karl Eschbach, a professor at the University of Texas Medical Branch in Galveston, Texas.
The government is also being aided by outside groups. For example, one submission by 27 police chiefs from Los Angeles to Boston say the amnesty will encourage illegal immigrants to help police deal with crime in communities of illegal immigrants.
If the judge grants an injunction temporarily blocking the amnesty, the government will immediately ask the Fifth Circuit Court of Appeals to cancel the injunction.
Lawyers said the appeals court’s decisions are unpredictable. “You really don’t know who you are getting… it’s a pretty split circuit, where there are some conservatives and there are some liberal members,” Sekulow said.
The appeals court likely will quickly decide whether to approve or deny the injunction during March, said Heathmon.
If the appeals court approves the injunction, the administration will file an appeal at the Supreme Court, the lawyers said.
The court’s response will likely depend on Justice Anthony Kennedy, who is the crucial swing vote, said Hethmon.
If Kennedy thinks the lawsuit is merely about immigration policy, he will likely decide that Obama can go ahead with the amnesty, said Hethmon.
If Kennedy decides the case is about whether Congress or the White House controls immigration policy, he’s likely to let the lawsuit proceed, said Hethmon.
Once the standing and injunction issues are settled, the Texas judge will have to begin the process of deciding who wins the case. That could take roughly six months, said the lawyers.
Once the result is announced in the summer, the losing side will ask the appeals court and then the Supreme Court to reverse the judge’s decision.
The appeals courts usually gives its answer in a few weeks.
The Supreme Court doesn’t take most cases. If it decides to hear the appeal from the lawsuit, it won’t issue an answer until early 2016, said the lawyers.