Judging the Judge: Why Obama’s Executive Order on Immigration Works


         The house of straw erected by the Texas Federal Judge Andrew Hanen who froze President Obama’s Executive Order on Immigration came tumbling down April 17th, as the rule of law forced him to surrender his February injunction to the scrutiny of the Appeals Court.   Reading all 123 pages of Hanen’s injunction, I can state that those who “shopped” for this Texas judge overpaid for his truckload of claptrap.

         Let’s begin by dismissing the talking points often repeated on Fox News that Judge Hanen declared the Executive Order unconstitutional.  The judge expressly says he can’t (pgs. 4, 69, 121).   The substance of his opinion addresses many arcane legal issues.  In the first long section, he discusses whether 26 states have standing to bring to court the Deferred Action for Parents of Americans (DAPA).  He finally argues “Yes,” by accepting that DAPA will force Texas to spend money on issuing driver’s licenses.  However, he conveniently omits mentioning that fees for licenses offset those costs.  His logic by subtraction is also questionable when he dismisses as irrelevant (pgs. 7-8) amicus briefs of states favoring DAPA.  These documents detail that revenues will increase under DAPA because the policy allows for legal deductions from paychecks and a host of other taxable transactions.  I do not know how Judge Hanen can void the financial arithmetic of counting your income as well as your expenses when drawing up a balance sheet.   But he does.

         Judge Hanen next discusses the “merits of the case” (pgs. 68-122).  He questions whether DAPA stipulates only temporary measures.  Otherwise, he says, DAPA constitutes a permanent change in the law: if so, it loses legitimacy as an Executive Order.  Although DAPA is limited to three years, Judge Hanen nonetheless concludes that it is “permanent.”  His proof? The DHS has a website with instruction on handling DAPA regulations (pg. 77).  Worse yet in his jaundiced eye, the website uses the word “shall” (imperative case) and not the subjunctive “may” (pg. 97) when instructing agents.  Notice here the pattern of looking for a conspiratorial insinuation.  The judge believes that using a website and employing the word “shall” refutes the stated term of “three years.”   This surreptitious logic is his legal ruse for making the Executive Order “permanent,” despite its textual affirmation that it is temporary.

         Jude Hanen cites the President’s remarks of November 25, 2014 as another “proof” that Obama’s order intends to change the immigration law (pg. 90).  But reading the full sentence, instead of the first clause that obsesses the right-wing, Obama clearly states that the change is by “reprioritizing,” an action consistent with the Executive Branch’s constitutional power of prosecutorial discretion. Word games are also played when the judge takes from the DHS website the word “initiatives.”  Citing the clichéd Black’s Legal Definition, the judge erects a legal house of cards on the claim that because “initiative” eventually involves legislation, it already IS legislation (pp. 106-07).

         The judge then tries to assault DAPA by proving it is not a case-by-case exercise in prosecutorial discretion as an Executive Order must be.  He states that no discretion is possible because the submission sheet for eligibility includes check-off boxes (pg. 109)!  The final few pages (113-117) reproduce the Senator Ted Cruz argument that, once implemented, a law favorable to the public will be “virtually irreversible” (pg. 115).  It would be like “putting the toothpaste back in the tube” (pg. 120) if reversed, Judge Hanen writes. 

         Crocodile tears flow when the judge suggests that applying for DAPA and providing the requisite information may produce “dire consequences” for immigrants, because the government will already have the necessary information for deportation (pg. 120).   I don’t know if the judge realizes that this insertion contradicts his conclusion that the Executive Order reverses existing legal provisions.   If, as he writes on page 120 that DAPA gathers information requisite to deportation, then logic dictates it does not reverse the legal procedures as he has written in the previous 119 pages.  By the judge’s own words this Executive Order only defers action.  Thus, the ever eager judge undercuts his own argument and proves the opposite of his windy theorizing. 

         It doesn’t take a rocket scientist – or legal expert – to see through all this nativist balderdash.  In a logical world, his opinion that this Executive Order is not an Executive Order would be laughed out of court.  But we do not inhabit a logical world in the SOTUS of today, where activist right-wingers exercise their majority, willy-nilly.  Meantime, about 6 million of my Latino brothers and sisters who are parents of American citizens are deprived of life, liberty and the pursuit of happiness promised by the American Dream.  The struggle goes on.

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