Will Obama’s defeat on his immigration order be sustained?

When I first heard that Judge Andrew Hanen had blocked President Obama’s executive order granting lawful status to as many as five million illegal immigrants, I was inclined to downplay the ruling’s significance. Judge Hanen is an able jurist, but a conservative one, and only a district court judge. The opinions that truly matter will be rendered by less conservative judges further up the ladder.

That’s still, perhaps, the best way of looking at it. But the quality of the arguments isn’t always irrelevant to the outcome of cases of enormous political moment. And the arguments Judge Hanen makes are quite strong.

As Michael McConnell points out, Hanen did not rest his decision on the Obama administration’s refusal, as an alleged act of prosecutorial discretion, to enforce the ban on staying in the U.S. illegally as applied to millions of illegal immigrants. Rather, his ruling is confined to the most egregious feature of the executive order — the grant to illegal immigrants of work authorization and benefits. Granting these sorts of affirmative favors has never been a matter of prosecutorial discretion, nor can it sensibly be viewed as such.

Administration lawyers stressed that Presidents Reagan and Bush 41 granted temporary status to certain classes of aliens without statutory authority. Judge Henen responded that these actions were never reviewed in court, and that past executive actions cannot serve as precedent for future expansions of executive power.

In addition, Judge Hanen was easily able to distinguish past executive actions in favor of illegal immigrants from Obama’s. The prior instances involved small categories of aliens to whom Congress had granted special status and who merely needed a brief temporary bridge so they could take advantage of the status Congress provided. Here, by contrast, millions of aliens are granted a change of status they are not eligible for under any provision enacted by Congress.

McConnell concludes that, given the narrowness of the decision and the quality of its reasoning, “it will not be easy for the administration’s lawyers to persuade those courts that Judge Hanen got the law wrong.”

I’m less confident of this, but more confident than I was before I read the opinion and Judge McConnell’s column.


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