When a state stops a major federal initiative in its tracks

The Immigration Wars can ignite some violent firefights, and none more incendiary than when President Barack Obama decides that the needs of the nation require that he circumvent a paralyzed Congress and take action on his own.

The latest such skirmish is being played out in Texas, between the administration on the one hand and 26 states, led by Texas, on the other. This brouhaha addresses action (acronym DAPA) by the Department of Homeland Security which would allow at least 290,000 (and possibly many more) undocumented parents of U.S. resident children to remain in the United States and receive certain benefits, such as work permits and (watch this one) driver's licenses. (Press reports refer to an "executive action" by the president; the exact form is a memorandum by the DHS secretary.)

On Nov. 20, 2014, the DHS secretary issued a memorandum directing USCIS (the immigration service) to establish DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) suspending removal from the United States for parents of U.S citizens or lawful permanent residents who meet certain requirements, such as residence and having no criminal record. This action expanded and supplemented a 2012 program called DACA (Deferred Action for Childhood Arrivals) which immunized from removal young immigrants who arrived here illegally. In both cases, statutes mandate the removal of the covered groups.

Both DAPA and DACA are lightning rods for the opposing sides of the immigration issue. Depending on one's political persuasion, they are motivated by either humane considerations, or to achieve raw political benefit. Twenty-six states (with Republican governors) have by now signed on to the Texas side of the fight; 12 states (without Republican governors) and the District of Columbia back the administration.

Texas and its supporting states sued in federal district court to prevent the secretary's DAPA order from being implemented. (Texas v. U.S.) They asked for a declaratory judgment and an injunction, pleading that the action is both procedurally and substantively a violation of the Administrative Procedure Act, and that it violates the Constitution's "take care" clause. (The Constitution charges the president to "take Care that the Laws be faithfully executed.")

The judge characterized the issues as involving "complex issues of immigration, which necessarily involve questions of federalism, separation of powers and the ability and advisability, if any, of the Judiciary to hear and decide such a dispute."

Plaintiffs also pleaded that the urgency of the situation required immediate attention, and sought a preliminary injunction, to prevent the program from being put into effect. This called for a prompt hearing.

The preliminary injunction was granted by the court Feb. 16, in a 91-page opinion. (The New York Times later reported that the judge had "angrily ordered an indefinite halt to the President's plan.") A week later, the federal government applied to the judge to lift the injunction and stay his order pending appeal, a motion which, according to the New York Times (April 8) the judge "angrily denied." He accused the government's lawyers of lying to him about the facts.

"Fabrications, misstatements, half-truths, artful omissions and failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life," the judge wrote, but they are not acceptable in the courtroom. The government denied such conduct.

The foregoing has little to do with the law, but suggests the atmosphere in which it is being conducted.

On April 16, the government's appeal from the grant of temporary injunction was heard by a panel of three judges of the 5th U.S. Circuit Court of Appeals in New Orleans. After a rare 2Â1/2-hour session, the case was submitted for decision, the two Republican members of the panel appearing to be supportive of the lower court action, the third more skeptical.

That is the present procedural posture. The legal issues are more challenging, and the venue of the case itself is of interest.

Texas brought the case in federal court in Texas (no surprise), but there is more involved. Suit was brought in the Brownsville Division of the Southern District of Texas. Brownsville is the very southernmost city in Texas, cheek-by-jowl with Mexico (across the Rio Grande from Matamoras) where immigration can be assumed to be a hot button issue.

And the Brownsville Division has only one active federal district judge, Andrew S. Hanen, which means Texas got to not only pick the court, but to select the judge - in this case a Republican appointee with little sympathy for the federal government.

Texas has provided an advanced course in forum-shopping.

DAPA's major effect is a direction that the federal government will not take action to remove a defined group of undocumented persons, and includes a grant to these individuals certain rights. These rights include work permits and driver's licenses.

As in any federal court, the plaintiffs must establish their standing to sue. For a state challenging a federal law, it is not enough to oppose the law or believe it harmful to the country, the state must show "injury-in-fact" to itself.

The judge was willing to find that the expense and inconvenience of issuing driver's licenses to affected aliens resident in Texas constituted such a burden, and was sufficient to establish Texas' standing: "Plaintiffs have shown that their projected injuries are more than 'generalized grievances'; rather, Plaintiffs have demonstrated that DAPA will directly injure the proprietary interests of their driver's licenses programs and cost these states badly needed funds."

One plaintiff having standing is sufficient to allow the case to proceed in federal court. The other 25 or so states get a free ride on standing. (In a similar recent case, the same Court of Appeals has found there was no standing. That result is possible in Texas.)

The judge then ruled that the secretary's action had violated the Administrative Procedure Act by not following required notice-and-hearing procedures. He found the "likelihood of success on the merits" test was met on that issue, and there was sufficient urgency to justify a preliminary injunction against the program.

The issues of prosecutorial discretion (usually held to be plenary) and the failure of the president to "take care" that the laws be faithfully executed played no part in the decision, although the judge was specific regarding what he was not deciding - so those could be heard and decided if this is decision is reversed and remanded.

And the basic question of whether the executive can decide not to enforce a law of the land in this manner remains open. The Constitution says the president "shall take care that the Laws be faithfully executed." Does that allow him the power not to carry out a law (exclusion of undocumented persons) that the law says shall be excluded? That is, of course, exactly what happens when the secretary defines a group that DHS will take no steps to exclude.

I initially characterized the case as a battle in the Immigration Wars. As long as Congress remains in deadlock, the administration will seek to avoid removing resident aliens who have a claim to remain in this country that the government regards as fair and just.

At the same time, the Republicans will take every opportunity to stifle those efforts. One Texas argument, set forth in the complaint, is that Obama in 2010 denied that he had the authority to suspend deportation by executive order, when arguing for the necessity of the Dream Act. His current actions, he concedes, are necessitated by congressional inaction. The relevance of prior statements is open to question.

The permutations of either decision by the 5th Circuit on the injunction are many and various. Either party could seek Supreme Court review. If the injunction is disapproved by the Court of Appeals, the case could be returned to the district court, which would still have to rule on the several substantive issues in the case, some of which we have not discussed. If the appellate court found that Texas has no standing, the case would be over, unless that decision was successfully appealed.

The underlying political disagreement on immigration issues extends far beyond the Texas litigation, but the importance of the ability of a state to stop a major federal initiative dead in its tracks, if successful, should not be underestimated.