U.S. District Judge Andrew S. Hanen's decision to block the Obama plan to defer deportation for about 5 million immigrants here illegally ignores a basic principle of government: For better or worse, the executive branch of government always has discretion as to whether and how to enforce the law.
The judge's lengthy opinion is wrong as a matter of law and, worse, is based on xenophobia and stereotypes about immigrants. It is very likely to be overturned by the U.S. 5th Circuit Court of Appeals and, if necessary, the Supreme Court.
Every president must set enforcement priorities on immigration, choosing whom to prosecute or whom to deport. No administration brings prosecutions against all who violate the law. Resources make that impossible, and there are laws on the books that should not be enforced.
Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States. For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses not to bring deportation actions. In fact, as recently as three years ago, the Supreme Court in United States vs. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the president to choose whether to bring deportation proceedings.
That is exactly what President Obama's executive orders on immigration have done. He has announced that the federal government will not seek to deport 600,000 young people who were illegally brought to the U.S. as children, or the undocumented parents of U.S. citizens and permanent residents who have resided in the country for at least five years. Millions of parents would be able to remain with their children because of this order and not need to live every day in fear of deportation.
The judge's order makes several basic legal mistakes. For example, the law is clear that a federal court has jurisdiction to hear a matter only if the federal court's decision would solve the problem. If the court's decision would have no effect, it would be nothing but an advisory opinion, which is prohibited by the Constitution. Thus, the Supreme Court long has held that a party has standing to sue in federal court only if a favorable decision would “redress” its injury.
The lawsuit in Hanen's court was brought by state governments that object to the Obama orders, claiming injury by the presence of immigrants here illegally. But the federal government deports only about 400,000 such immigrants a year. It is entirely speculative that stopping the executive orders would have any effect on the states that brought the suit. In fact, it is unclear what the judge's order will mean. He cannot force the Department of Homeland Security to deport anyone.
The central argument in Hanen's ruling is that the executive branch must promulgate a formal rule to defer deportation of these individuals. But the federal government constantly sets enforcement priorities without a formal rule. The Justice Department's policies to not prosecute possession of small amounts of marijuana or credit card fraud below a designated dollar level, for example, were not adopted by formal rules.
In fact, recent presidents, including Republicans, have deferred deportations without formal rules. In 1987, in response to political turmoil in El Salvador and Nicaragua, the Reagan administration took executive action to stop deportations for 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, post-Tiananmen, stopped deportations of Chinese students. He kept hundreds of Kuwaiti citizens who were illegally in the United States from being deported after Saddam Hussein invaded their nation. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of El Salvador's president, and ordered that deportation decisions include consideration of factors such as whether a mother was nursing or whether the person in question was a U.S. military veteran.
Judge Hanen, appointed to the federal bench by George W. Bush, has the reputation of being especially conservative on immigration issues. That tone underlies his opinion, especially as he spoke of immigrants being “terrorists” and “criminals.” What he misses, though, is that the point of Obama's executive orders was to set enforcement priorities to focus deportations on terrorists and criminals and not on breaking up families.
It is not surprising that a conservative Republican judge would try to stop the Obama immigration policy. But it is just the first word and one unlikely to be sustained on appeal.
Erwin Chemerinsky is dean of the UC Irvine School of Law; Samuel Kleiner is a fellow at the Yale Law Information Society Project.