Could a Judge Save Republicans on Immigration?

A federal ruling on President Obama's executive order might save Homeland Security funding in Congress

Shannon Stapleton/Reuters

Republicans certainly won a legal reprieve when a federal judge in Texas blocked the Obama administration from implementing much of the president's unilateral immigration actions on Monday night. The decision might also give the GOP a political break as well.

For the last few weeks, Republican leaders in the House and Senate have been paralyzed in their effort to fund the Department of Homeland Security while simultaneously reversing President Obama's move to shield millions from deportation. A House-passed bill is stalled in the Senate, and the department will run out of money on February 27 without congressional action.

Yet the injunction issued shortly after midnight Tuesday could offer Speaker John Boehner and Senate Majority Leader Mitch McConnell a way out of the jam—if they decide to take it. With the president's policy now in legal limbo, the GOP could strip out the immigration provisions from the DHS funding bill and defer to the courts, a move that would allow the party leadership to save face while preserving a legislative fight for the future.

So far, however, that's not the path Boehner and McConnell are taking. In nearly identical statements issued after Judge Andrew Hanen's ruling, they each said the decision should prompt Senate Democrats to drop their filibuster of the House bill. That isn't likely to happen either, and for the moment, the impasse continues. One reason why Boehner and McConnell aren't blinking—other than the enormous pressure they are under from conservatives—is that Judge Hanen's injunction against the immigration policy might only last a few days. The Justice Department is expected immediately to appeal the decision to the Fifth Circuit Court of Appeals and ask that the administration be allowed to proceed with its deferred action program while the case is under review. So it's still unclear whether the new policy will be in effect when Congress returns to Washington to try to avert a partial DHS shutdown next week.

Immigration reform advocates anticipated Hanen's ruling almost from the moment he was assigned the case, which arises from a lawsuit filed by Texas and 25 other states challenging the Obama policy. In a 123-page opinion, Hanen agreed with the states' argument that they would be negatively affected by the federal policy because the influx of newly-legalized immigrants would force them to spend millions of dollars to process their applications for drivers' licenses. And he repeatedly criticized the administration for circumventing the will of Congress and ignoring the law. "The States assert that the Government has abandoned its duty to enforce the law," Hanen wrote. "This assertion cannot be disputed." Later in the opinion, he added:

The DHS does have discretion in the manner in which it chooses to fulfill the expressed will of Congress. It cannot, however, enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them. As the Government's own legal memorandum, which purports to justify DAPA-sets out, 'the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.' ... The DHS Secretary is not just rewriting the laws; he is creating them from scratch.

The judge showed little interest in the administration's argument that multiple past presidents of both parties had used prosecutorial discretion to grant immigrants protection from deportation. And he relied on an off-the-cuff comment from Obama himself, when the president told a group of immigrants in Chicago in late November that he "took action to change the law."

Immigration reform advocates expressed confidence that Hanen's decision would be overturned. Their immediate concern, however, was that news of the injunction would discourage undocumented immigrants from getting ready to apply for the deferred action program. (The government was set to begin accepting applications under the expansion of the DACA program for Dreamers on Wednesday, but officials announced that would be delayed by the court ruling.) "Don't panic," said Debbie Smith, associate general counsel for the Service Employees International Union. "We think this is a time out, a bump in the road."

In a legal dispute between the states and the federal government, the final word often belongs to the Supreme Court, and the case might not reach the justices for months. That could mean a lengthy period of uncertainty for immigrants seeking a resolution to their legal status. But the decisions over the next few weeks will have important political ramifications as well, particularly for the thousands of Department of Homeland Security employees who are waiting for Congress to decide if—and when—they'll get paid.