CASE WILL MOVE TO FIFTH CIRCUIT COURT OF APPEALS
by Sharon Rondeau
In his opinion, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas agreed with a conglomeration of 26 states that “at least” one of them, Texas, possesses standing to challenge the defendants on a violation of “the procedural requirements under the Administration [sic] Procedure Act” (p. 123).
On page 102, Hanen explained that a change in a federal “rule” requires publication in the Federal Register, which did not occur in the case of Obama’s executive actions announced verbally on November 20 and signed the following day en route to a rally supporting them in Las Vegas.
The states claimed in their lawsuit, filed in early December, that Obama’s executive actions granting deferred status to millions of illegals “conflicts with the President’s constitutional duty to ‘take Care that the Laws be faithfully executed.’” The plaintiffs cited the overwhelming number of unaccompanied minors as well as adults who have arrived in the U.S. illegally over the last six years, with a very low percentage having been deported.
At the end of January, 30 U.S. mayors and representatives of 12 states filed a brief supporting Obama’s plan, which includes not only deferred deportations, but also the issuing of work permits, Social Security numbers, and the potential for those granted deferred status to bring relatives from their home country.
Hanen did not rule on the plaintiffs’ challenge to the constitutionality of the executive actions themselves, reserving judgment until “after each side has had an opportunity to make a complete presentation.”
In December 2013, Hanen wrote in an opinion regarding a child from El Salvador smuggled into the U.S. by an illegal alien residing in Virginia that the United States government had participated in a criminal conspiracy by “completing the criminal mission of individuals who are violating the border security of the United States” in delivering the child to her mother.
“…Instead of enforcing the laws 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…The DHS is rewarding criminal conduct…More troubling, the DHS is encouraging parents to seriously jeopardize the safety of their children,” Hanen wrote.
At issue in the lawsuit is “executive actions” ordered by Obama and the ensuing memoranda published by Department of Homeland Security (DHS) Secretary Jeh Johnson directing DHS agencies to utilize their resources in “new policies” differing from existing federal law.
Although illegals kill American citizens every day, the Johnson memos directed ICE, USCIS and U.S. Customs and Border Protection to “develop smart enforcement priorities” (p. 2). On November 22, The Washington Examiner extracted from the Johnson memos that “drunk drivers, sex abusers, drug and gun offenders” were not considered “top deportation priorities.”
On November 20, 2014, Obama gave a speech in which he claimed that he has the legal authority to order the suspension of deportations of those illegally present in the country in order to “fix our broken immigration system.”
During his 2008 campaign, Obama also claimed, “I believe in the Constitution and I will obey the Constitution of the United States.” However, if he is not a “natural born Citizen,” as Article II, Section 1, clause 5 of the U.S. Constitution requires for the president and commander-in-chief and many Americans doubt, he has violated that provision of the founding document, and everything he has signed could be subject to nullification.
After Obama’s immigration speech, confusion existed as to whether he had signed executive orders, which are then published in the Federal Register, or “executive actions” on immigration. White House Media Affairs staffer Shawn Turner confirmed to The Post & Email that Obama had issued the latter rather than the former.
On December 6, the government accountability organization Judicial Watch called for a criminal investigation into Obama’s actions based on what JW President Tom Fitton claimed was “a recognition by the White House that President Obama did not have the authority to make the changes in immigration law outlined in his Nov. 20 speech.”
Obama’s November 20 decree offered relief from scheduled deportation for approximately 4.4 million illegals whose children received deportation abeyance through Obama’s 2012 DACA program. The new program the regime proposed creating, DAPA, is to include illegals who have been in the United States continuously since January 1, 2010; do not have a serious criminal record, “pass a background check,” and other requirements.
Applications for DAPA were scheduled to be submitted beginning on February 18. The U.S. Citizenship and Immigration Services website has posted an update which states:
Due to a federal court order, USCIS will not begin accepting requests for the expansion of DACA on February 18 as originally planned. The court’s temporary injunction, issued February 16, does not affect the existing DACA. Individuals may continue to come forward and request an initial grant of DACA or renewal of DACA under the guidelines established in 2012. Please check back for updates.
In regard to DACA, Hanen’s temporary injunction applies to “the expansions created in the November 20, 2014 DAPA Memorandum.” The states claimed in their lawsuit that 1.7 million young illegals were granted relief under DACA.
On January 14, the U.S. House of Representatives passed a measure, HR 240, which would fund DHS from February 28 through the end of September which included five riders blocking Obama’s immigration changes. However, the U.S. Senate has not been able to vote on HR240 because all Democrats, Senate Majority Leader Mitch McConnell and one other Republican voted against debating it.
Funding for DHS, which must be appropriated by Congress expires on February 27 at midnight. Following the judge’s decision, Obama claimed that Congress was not providing funding for DHS to continue its operations.
On Tuesday, Sen. Jeff Sessions, an outspoken opponent of Obama’s immigration ideas, stated on his website:
The court’s ruling is yet further affirmation that the President’s action – as the President himself admitted many times – is illegal. President Obama has suspended some 500 pages of existing immigration law passed by the representatives of the American people, and replaced it with the very measures those representatives have repeatedly rejected. The President’s action violates our laws, our Constitution, and the centuries of legal heritage that yielded our Republic.
Congress, so threatened, can never acquiesce to this action by funding it. The President has acted unconstitutionally, and it is the President – not Congress – who must back down. We are a coequal branch of government, delegated with the powers necessary to defend our institution and our Constitutional role. We cannot and must not establish the precedent that we will fund illegal actions on the hope that another branch of government will intervene and strike down that illegal action at some later point. To establish such a precedent would be to empower any future President to demand Congress fund any unlawful decree, and then assert that Congress is ‘shutting down the government’ unless this illegal, off-the-books program is funded. Congress must reassert its waning power. We must reestablish the Constitutional principle that the people’s representatives control the purse.
On Monday, Sessions echoed a revelation made by House Judiciary Committee Chairman Bob Goodlatte that Obama’s executive actions contain a provision which will allow them to “place potentially hundreds of thousands of unlawful immigrants on a path to citizenship.”
Speaker of the House John Boehner issued the following statement in response:
House Minority Leader Nancy Pelosi was in communist Cuba with other fellow House and Senate Democrats on Tuesday furthering Obama’s edict announced on December 17 to engage in diplomatic relations and “support increased respect for human rights and fundamental freedoms in Cuba,” although no demands were made on the Cuban government to permit more freedoms.
In response to Hanen’s ruling, Pelosi said:
How sad for our impacted ‘Dreamers’ and their families, how necessary it is for an immediate appeal of this ruling. I am confident such an appeal will succeed.
Senate Minority Leader Harry Reid stated:
President Obama is well within his established Constitutional authority and the legal process will bear that out. The only effect of this ruling is to delay justice for thousands of families in Nevada and across the country. Governors, mayors and law enforcement officers have emphasized that these programs are good public policy, help our economy and keep our communities safe.
The White House has said it will appeal the decision to the Fifth Circuit Court of Appeals.