Texas, 16 Other States, File Lawsuit Over Obama’s Immigration Executive Action

Texas has joined with 16 other states in a lawsuit against the Obama Administration over the President's executive action on immigration. At first glance, it doesn't appear to have much legal merit.

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Texas and sixteen other states have filed a lawsuit against the Obama Administration over the President’s executive action on immigration:

AUSTIN, Tex. — Texas and 16 other states filed a federal lawsuit on Wednesday challenging President Obama’s executive actions on immigration, arguing that he violated his constitutional duty to enforce the laws and illegally placed new burdens on state budgets.

The lawsuit, filed in federal court in Brownsville, Tex., was the first major legal challenge to initiatives Mr. Obama announced Nov. 20 that will provide protection from deportation and work permits to up to five million immigrants in the country illegally.

Attorney General Greg Abbott of Texas, which led the coalition bringing the challenge, said Mr. Obama was “abdicating his responsibility to faithfully enforce the laws that were duly enacted by Congress and attempting to rewrite immigration laws, which he has no authority to do.”

The suit added to the broadside by angry Republicans against Mr. Obama’s unilateral actions. In Washington, Republicans in the House of Representatives moved toward holding a largely symbolic vote on Thursday on a bill to dismantle the president’s programs, with a plan to vote next week on a spending bill that could fund the Department of Homeland Security, the agency administering the new programs, for only a few months.

he states’ lawsuit also argued that the Obama administration had failed to comply with requirements the federal government must follow in issuing new rules, and it warned that Mr. Obama’s measures would encourage a new wave of illegal crossings at the Southwest border, forcing Texas and other states to spend additional funds on law enforcement, health care and education.

Mr. Obama and other senior officials have said that they have full legal authority for the new measures, which they said were authorized by existing statutes. Mr. Obama granted deferred deportations, using executive prosecutorial discretion, to undocumented immigrants who are parents of American citizens and legal permanent residents.

 ”The Supreme Court and Congress have made clear that federal officials can set priorities in enforcing our immigration laws, and we are confident that the president’s executive actions are well within his legal authorities,” Shawn Turner, a spokesman for the White House, said Wednesday after the lawsuit was filed.

In presenting the lawsuit at a news conference, Mr. Abbott said Texas was “uniquely qualified to challenge the president’s executive order” because the state had suffered the brunt of illegal immigration and drug-related cross-border crime. Mr. Abbott said the president’s responsibility to enforce the laws was a “fundamental promise to the American people,” and he said any changes to immigration laws should be made by Congress, not by “presidential fiat.”

Mr. Abbott, a Republican, will replace Rick Perry as Texas governor in January after winning in a landslide in November. Mr. Perry, the state’s longest-serving governor, joined a one-two punch against Mr. Obama on Wednesday from a pair of conservative Texas Republicans who have repeatedly attacked the administration on immigration and other issues.

(…)

States joining the lawsuit were Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, Mississippi and Maine.

The states’ lawsuit argues that the surge of illegal crossings by families and unaccompanied children over the summer was spurred by a program Mr. Obama started in 2012, known as Deferred Action for Childhood Arrivals, which gave deportation protections similar to the new ones to undocumented immigrants who came to the United States as children. The suit said the federal authorities “have contributed to the surge of illegal immigration by refusing to enforce the laws on the books.”

The new directives are “certain to trigger a new wave of undocumented immigration,” the lawsuit says, imposing “enormous law enforcement costs.” Texas said it was spending an extra $1.3 million a week on troopers and other resources.

For Mr. Abbott, who has been Texas’ attorney general since 2002, the multistate lawsuit was his 31st legal challenge against the Obama administration and his 34th against the federal government.

“I go into the office, I sue the federal government, and I go home,” Mr. Abbott has told audiences at public events and political rallies. But with being joined by other states, Mr. Abbott’s new lawsuit seemed likely to become a primary vehicle for Republicans’ efforts to halt Mr. Obama’s immigration actions through the courts.

The lawsuit will surely be popular among the largely Republican populations of the states that have joined onto it. As a legal and factual matter, though, it appears on first glance that the basis for the lawsuit is quite dubious at best, and that this Complaint could face many of the same legal challenges that the House of Representatives will face in its lawsuit regarding the Executive Branch’s modifications to deadlines in the Affordable Care Act, and that any similar House lawsuit on the immigration change would face should it be filed in the future. Much as the Courts have generally not recognized the ability of individual legislators or one or both chambers of Congress to sue the Executive Branch, they have also held that states generally only have standing to sue an agency of the Federal Government in a limited amount of circumstances, most specifically when the state can assert some real, articuable injury separate from any that many be suffered by one of its citizens individually. This, for example, is why Virginia’s lawsuit challenging the individual mandate in the Affordable Care Act was dismissed by the Fourth Circuit Court of Appeals, because the Court held that the Commonwealth could not articulate an injury separate from those of an individual citizen. The lawsuit filed by other states that was litigated in Florida avoided this problem because, in addition to the state Plaintiffs, the lawsuit also included a number of individual Plaintiffs who were able to allege an anticipated injury from being compelled to purchase insurance or, in the alternative, fined if they failed to do so.

In this case, it appears that the standing that the states are asserting come solely from the allegation that the Presidents modification to deportation policy, both in the changes announced on November 20th and in the 2012 Deferred Action for Childhood Arrivals program which, allegedly, encouraged the influx of migrants from Central America that occurred earlier this year. The problems with this attempt to create damages, though, seem to be several. First, the fact that there was nearly a two year cap between the announcement of DACA and the migrant crisis of this past summer would seem to make any argument that the two are connected difficult at best. Second, none of the people who came to the United States are eligible under DACA in the first place. To the extent that the Federal Government is required to give them a hearing rather than deport them, it is due to a law passed by Congress called  the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. Under this law, unaccompanied minor children from “noncontiguous nations” cannot simply be deported immediately the way a minor from Mexico or Canada can be. Instead, they must be taken into custody and processed through the immigration system to determine whether or not they are eligible for asylum under the U.S. law. As I made clear during the migrant crisis, which itself had multiple causes and no easy solution, only Congress can act to change that law.  Thus, blaming any burdens placed on the states on either DACA or changes to deportation policy that have not even been put into effect yet is a legal and factual stretch at best.

The most important barrier to a state lawsuit against the Executive Branch over DACA and the other administrative changes, though, comes from a Supreme Court case decided just a few years ago in connection with a controversial effort by Arizona to give local authorities more power to enforce Federal immigration laws. In Arizona v. United States, the Supreme Court deal with the Constitutionality of that state’s controversial SB 1070, which gave law enforcement broad authorities to question people they had stopped about immigration status and to hold them if they could not prove that they were in the United States legally. While the Court did uphold one section of the law, the majority of the law was struck down in a ruling in which Justice Kennedy, writing for a 6-3 majority, held that the Federal Government’s to enforce immigration laws, including under what circumstances it would and would not pursue deportation, was “broad” and “undoubted.” Given the plenary and nearly unlimited power that the Court recognized in this case, it seems likely that the Plaintiff-states in this case would have a difficult, if not impossible, task in asserting that the President did not have authority to determine that the Federal Government should concentrate its deportation activities. This would be especially true given that it is unlikely that the Court would be unlikely to overrule one of its own recent precedents.

No doubt, we’ll have more to see as this case moves forward, but as it stands rights now the legal merits of this lawsuit seem to me to be dubious at best.. In any case, here’s the Complaint:

Texas Et Al v. United States Et Al by Doug Mataconis

FILED UNDER: Barack Obama, Borders and Immigration, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. KM says:

    **sigh** Again with the lawsuits. Instead of doing things the proper way (Congress doing its damn job!), we bog down the courts with this crap. There is a very easy way to do this and bypass Obama/the executive order: pass a damn immigration bill.

  2. stonetools says:

    Next stop for the crazy Tea Party right….

    INPEACH!!!

  3. Barry says:

    @KM: “There is a very easy way to do this and bypass Obama/the executive order: pass a damn immigration bill. ”

    They could have worked with him, but their Base said No. That’s the GOP Congresscritters’ problem.

  4. C. Clavin says:

    JUST PASS A DAMN BILL.

  5. Mu says:

    Am I the only one who finds filing an anti-immigration suit in Brownsville, TX ironic?

  6. Moosebreath says:

    @KM:

    Since these are state governments, they cannot pass a bill. So I don’t mind this.

    I also suspect that, even if there is a valid claim on the merits, this won’t be decided until Obama is out of office, and likely this will be moot.

  7. Rick DeMent says:

    Well passing a bill wouldn’t help them, it would solve a problem and that’s the problem.

  8. C. Clavin says:

    @Moosebreath:

    Since these are state governments Republicans, they cannot pass a bill. So I don’t mind this.

    Fixed that for you.

  9. LaMont says:

    The GOP can’t have it both ways. Either pass a bill or put all eggs in the old white people basket once and for all. Seriously, those two options are actually better than the course they’re appearing to take. One option gives them a legitimate chance by gaining wide support while shedding the tea party base. The other slowly drifts them into irrelevancy while keeping the tea party base strong. Anything in between is a slow death as they stand to lose support on every front. Moderates in Latinos will continue to feel alienated while the tea party base will become frustrated at the lack of tangible results (no impeachment, no government shut down, no real way to defund immigration, etc.). I am beginning to realize that it is not enough for the GOP to bark loud then hope this all blows over. They will have to make a decision sooner rather than later.

  10. HarvardLaw92 says:

    Taking this analysis further, the Constitution reserves matters of immigration solely to the federal government, ergo any complaint regarding deficient enforcement of federal immigration laws (which as described above is on weak ground to begin with) would conceivably have to originate with Congress. States have no standing to challenge federal legislation which does not attempt to compel their participation in its exercise.

  11. al-Ameda says:

    Just look at the roster of plaintiff states,
    that tells you all you need to know.

  12. Moosebreath says:

    @C. Clavin:

    So Democratic governors can pass a bill in Congress? Do tell.

  13. JohnMcC says:

    @HarvardLaw92: Well, it ain’t Hahvahd, but:

    scholarship.law.duke.edu/dlj/vol61/iss2/1/

    The article refers to the supposed ability of the states to individually pass legislation controlling some aspects of immigration if the federal gov’t has also passed laws on that facet of the topic as ‘mirror-image’ laws. The authors conclude:

    “…the mirror-image theory fails to identify a legitimate source of state authority to legislate on immigration matters.”

  14. michael reynolds says:

    The suit is GOP leadership trying to distract and stifle the Tea Party crazies. It’s not supposed to be real, it’s all posturing for the morons.

  15. John425 says:

    @michael reynolds: You seem closely accustomed to dealing with morons. Why stay with them? Join the Republican Party and be free of them.

    BTW: The typical Dem Senate ploy was to send a bill to the House that was clearly unpalatable and then refused to negotiate it with the House. Such take it or leave it attitudes will truly be coming around next year, only Democrats will be on the receiving end. You and I both know that the border security provisions in the Senate bill were a farce. Want a good faith compromise? Make illegal entry a felony. That’ll do for starters.

    BTW: Illegal entry into Mexico IS a felony, punishable by 2 years in prison.
    Canada can try an illegal immigrant as a felony or misdemeanor, depending on circumstance. A misdemeanor offense is still punishable by a fine and jail time.

  16. C. Clavin says:

    @Moosebreath:
    I was curious about that…which of those states has a Democratic Governor?

  17. C. Clavin says:

    @John425:

    BTW: The typical Dem Senate ploy was to send a bill to the House that was clearly unpalatable and then refused to negotiate it with the House.

    Really? Examples?

  18. Tillman says:

    I remember my teenage years and all the stories of American fame for litigiousness. I didn’t expect the government to start suing itself, but then again I was an idealist.

  19. Moosebreath says:

    @C. Clavin:

    “which of those states has a Democratic Governor?”

    None of course. Which of those states’ governors get to vote on the bill pending in Congress, as you “fixed it” for me above?

  20. An Interested Party says:

    You seem closely accustomed to dealing with morons. Why stay with them? Join the Republican Party and be free of them.

    Yes of course because it is people in the Democratic Party who file ridiculous lawsuits that end up going nowhere…

  21. Pharoah Narim says:

    @John425: Thanks to the blueprint set over the last 6 years by the ReThugs…..who cares if they have both chambers? The don’t have a 60 vote majority. Enjoy your dose of karma! Lol. Good luck defending all those open seats in a Presidential elections and 2 more years of Tea Party sabotage.

  22. Pharoah Narim says:

    Please release my comment

  23. HarvardLaw92 says:

    @JohnMcC:

    That article predates Arizona v. United States, in which SCOTUS made it pretty unambiguous that states have no role either in setting immigration policy or in enforcing federal immigration laws (with the exception that state officers may check immigration status and arrest based on that status. State courts, however, may not adjudicate these cases. The offenders have to be tendered to federal custody post arrest, after which the decision to prosecute / release lies solely with the DoJ.)

    This is another serving of meaningless theater for the base.

  24. Davebo says:

    @HarvardLaw92:

    The offenders have to be tendered to federal custody post arrest, after which the decision to prosecute / release lies solely with the DoJ.)

    At which point they are bonded pending a 4 year wait for a hearing by EOIR because…. Republicans refused to adequately fund them resulting in hiring freezes.

    Yet they are “very serious” about illegal immigration.

  25. John425 says:

    @C. Clavin: Really, Cliffie: Are you blind as well as dumb? The Senate Immigration Bill of 2013 supposedly brokered by the Gang of Eight. The House said it lacked sufficient border security controls and it was DOA in the House.

  26. Rick DeMent says:

    I’m pretty sure that the state legislatures could impose a very strict employment documentation regime on companies that would pretty much solve the problem or at least shift the problem to other states but they won’t because it would impact the people who fund their campaigns.

  27. Neil Hudelson says:

    @John425:

    How do you think negotiation between the two houses work? It’s not how you are describing. The Senate doesn’t try to pass a bill they think the right flank in the house will love. They pass a bill based on their outlook, their constituent responses, and their thoughts on what is the best policy going forward (well…at least in theory). The house passes their own bill with the same formulating guidelines.

    Then the two houses reconcile the bills and negotiate a bill they think can pass both houses.

    While there are other ways to achieve compromise, this is how it is traditionally done.

    Even with the gang of eight involved, the purpose is hardly to create a perfect bill that will immediately pass both houses. The purpose is to create a framework.

    If the house wanted stronger border security, they could’ve either taken the Gang of Eight’s bill and tweaked it, or created a new bill and sent it to reconciliation.

    In other words, they could do their job.

    Are you seriously arguing that, because the Senate didn’t write the house bill for them, the Senate is at fault?

  28. Stan says:

    @John425: You guys are channeling Pete Wilson. He won a race for governor in California in the mid 90’s by playing the anti-immigration card, but in the process he inadvertently flipped the state from red to blue and ended his own political career. The number of Hispanics in Texas keeps on increasing, and unless they’re more charitable than I think they’re going to remember both the President’s executive order and Texas’s response.

  29. joe says:

    haha ………”For Mr. Abbott, who has been Texas’ attorney general since 2002, the multistate lawsuit was his 31st legal challenge against the Obama administration and his 34th against the federal government” wasting people money shame to lose many times.