A federal judge has found that a suit by federal immigration agents seeking to block President Obama’s deferred-deportation initiative is likely to succeed on the merits. The initiative in question, which was announced by Obama and Janet Napolitano last year, allows a deferral of the deportation of illegal aliens if they came to the country under the age of 16, are in school or have obtained a high school diploma, haven’t been convicted of a felony, significant misdemeanor or multiple misdemeanors, and aren’t a threat to public safety or national security.
The lead plaintiff challenging the Obama-Napolitano direcive is Chris Crane, president of the National Immigration and Customs Enforcement Council. The lead attorney for the plaintiff is Kansas Secretary of State Kris Kobach. Crane and Kobach both testified this week against the Gang of 8’s immigration reform bill.
Federal district court judge Reed O’Connor (Northern District of Texas) found that DHS does not have discretion to refuse to initiate removal proceedings when the requirements for deportation under a federal statute are met. In other words, DHS does not have discretion to refuse to follow the law.
It’s good to know that when a law says the government “shall” do something, the govenment must do it, even if Barack Obama and Janet Napolitano would rather not.
But Judge O’Connor did not decide whether to grant the immigration agent’s request for a preliminary injunction. Instead he asked the parties for more briefing.
The issue that Judge O’Connor wants briefed is whether the court has jurisdiction over the case, or whether it is actually an employment suit that should be decided administratively. The government, he found, failed to brief this defense adequately.
Normally, that would mean the issue is waived. However, the issue of a court’s subject matter jurisdiction cannot be waived. Thus, the judge had to bail out the government lawyers.
But jurisdiction or no jurisdiction, the lawless conduct of Obama and Napolitano demonstrates that the government cannot be trusted to enforce provisons of immigration law it doesn’t like. This means that we can have no confidence that the government will adhere to the requirements in the Gang of 8 legislation that were inserted to win over Marco Rubio and other naive conservatives.
Moreover, the Gang’s legislation confers vast discretion on the head of DHS. If DHS won’t even follow Congress’s strict requirements, we certainly cannot expect it to exercise its discretion in an even-handed manner.