U.S. Constitution
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Title: Texas Gov. Greg Abbott: ‘Federal Judge Just Granted My Request to Halt Obama’s Executive Amnesty Order Nationwide’
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URL Source: http://www.theblaze.com/stories/201 ... tive-amnesty-order-nationwide/
Published: Feb 17, 2015
Author: Jason Howerton
Post Date: 2015-02-17 01:07:31 by out damned spot
Keywords: Judge, executive amnesty, nationwide
Views: 1771
Comments: 10
Texas Gov. Greg Abbott announced on Monday night that a federal judge has “granted” his request to “halt” President Barack Obama’s “Executive Amnesty Order” across the country.
*Greg Abbott ✔ @GregAbbott_TX
BREAKING: Federal Judge just granted my request to halt Obama's Executive Amnesty Order Nationwide. More later. #txlege #tcot @TexasGOP
Time reporter Zeke Miller later published the temporary injunction order handed down by the United States District Court for the Southern District of Texas online.
The order of temporary injunction states: “The reasons for this injunction are set out in detail in the accompanying Memorandum Opinion and Order, but, to summarize, it is due to the failure of the Defendants to comply with the Administrative Procedure Act.”
The order continues: “The Court having found that at lest one Plaintiff has satisfied all the necessary elements to maintain a lawsuit and to obtain a Temporary Injunction hereby grants the Motion for Temporary Injunction. The United States of America, its departments, agencies, officers, agents and employees are hereby enjoined from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program as set out in the Secretary of Homeland Security Jeh Johnson’s memorandum dated November 20, 2014 (“DAPA Memorandum”), pending a final resolution of the merits of this case or until a further order of this Court, the United States Court of Appeals for the Fifth Circuit or the United States Supreme Court.”
Read the entire temporary injunction order below:
179122563073 by Zeke Miller
(2 images)
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WND EXCLUSIVE
Federal judge halts Obama’s amnesty orders Government ‘hereby enjoined from implementing any and all aspects’
Published: 32 mins ago
www.wnd.com/2015/02/feder...ts-obamas-amnesty-orders/
‘the Medieval Christian threat is under control’
#2. To: out damned spot (#1)
This is good news.
Now they need to move towards impeachment. I know they wont.
#3. To: out damned spot (#0)
Texas Gov. Greg Abbott announced on Monday night that a federal judge has “granted” his request to “halt” President Barack Obama’s “Executive Amnesty Order” across the country.
From Doc 145, MEMORANDUM OPINION AND ORDER
At 4:
I. THE ISSUES BEFORE AND NOT BEFORE THE COURTAlthough this Court is not faced with either a Congressional Act or an Executive Order, the sentiment expressed by these Chief Justices is nonetheless applicable. The ultimate question before the Court is: Do the laws of the United States, including the Constitution, give the Secretary of Homeland Security the power to take the action at issue in this case?
At 5-6:
Third, several of the briefs have expressed a general public perception that the President has issued an executive order implementing a blanket amnesty program, and that it is this amnesty program that is before the Court in this suit. Although what constitutes an amnesty program is obviously a matter of opinion, these opinions do not impact the Court's decision. Amnesty or not, the issues before the Court do not require the Court to consider the public [6] popularity, public acceptance, public acquiescence, or public disdain for the DAPA program. As Chief Justice Roberts alluded to above, public opinions and perceptions about the country's policies have no place in the resolution of a judicial matter.Finally, both sides agree that the President in his official capacity has not directly instituted any program at issue in this case. Regardless of the fact that the Executive Branch has made public statements to the contrary, there are no executive orders or other presidential proclamations or communique that exist regarding DAPA. The DAPA Memorandum issued by Secretary Johnson is the focus in this suit.
#4. To: out damned spot (#0)
From Doc 145, MEMORANDUM OPINION AND ORDER
At 6:
That being said, the Court is presented with the following principle issues: (l) whether the States have standing to bring this case; (2) whether the DHS has the necessary discretion to institute the DAPA program; and (3) whether the DAPA program is constitutional, comports with existing laws, and was legally adopted. A negative answer to the first question will negate the need for the Court to address the latter two. The factual statements made hereinafter (except where the Court is discussing a factual dispute) should be considered as findings of fact regardless of any heading or lack thereof. Similarly, the legal conclusions, except where the Court discusses the various competing legal theories and positions, should be taken as conclusions of law regardless of any label or lack thereof. Furthermore, due to the overlap between the standing issues and the merits, there is by necessity the need for a certain amount of repetition.
#5. To: out damned spot (#0)
From Doc 145, MEMORANDUM OPINION AND ORDER
At 3, Footnote 2
2 The Court uses the phrases "illegal immigrant" and "illegal alien" interchangeably. The word "immigrant" is not used in the manner in which it is defined in Title 8 of the United States Code unless it is so designated. The Court also understands that there is a certain segment of the population that finds the phrase "illegal alien" offensive. The Court uses this term because it is the term used by the Supreme Court in its latest pronouncement pertaining to this area ofthe law. See Arizona v. United States, 132 S. Ct. 2492, 2497 (2012).
#6. To: out damned spot (#0)
Doc 145, MEMORANDUM OPINION AND ORDER
This opinion addresses STANDING through middle of page 68 before it turns to the merits of the case.
It considers:
1. Article III Standing
2. Prudential Standing
3. Standing Under the Administrative Procedure Act
4. Parens patriae Standing (parent of the country)
5. Massachusetts v E.P.A. Standing
6. Abdication Standing
The Court upheld all claims of standing.
#7. To: out damned spot (#0)
Doc 145, MEMORANDUM OPINION AND ORDER
At 70-71:
The fact that the DHS has virtually unlimited discretion when prioritizing enforcement objectives and allocating its limited resources resolves an underlying current in this case. This fact does not, however, resolve the specific legal issues presented because the general concept of prosecutorial discretion-or Defendants' right to exercise it-is not the true focus of the States' legal attack.so Instead, Plaintiffs argue that DAPA is not within the Executive's realm (his power to exercise prosecutorial discretion or otherwise) at all; according to Plaintiffs, DAPA is simply the Executive Branch legislating.Indeed, it is well-established both in the text of the Constitution itself and in Supreme Court jurisprudence that the Constitution "allows the President to execute the laws, not make them." Medellin, 552 U.S. at 532. It is Congress, and Congress alone, who has the power under the Constitution to legislate in the field of immigration. See U.S. Const. art. 1, § 8, cl. 4; Plyler, 457 U.S. at 237-38. As the Supreme Court has explained, "[t]he conditions for entry [or removal] of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for detennining such classification, the right to tenninate hospitality to aliens, [and] the grounds on which such detenninations should be based, have been recognized as matters solely for the responsibility of the Congress . . . ." Harisiades v. Shaughnessy, 342 U.S. 580, 596-97 (1952) (emphasis added).
At 85-86: (footnotes omitted)
While the Court recognizes (as discussed above) that the DRS possesses considerable discretion in carrying out its duties under the INA, the facts of this case do not implicate the concerns considered by Heckler such that this Court finds itself without the ability to review Defendants' actions. First, the Court finds an important distinction in two terms that are commonly used interchangeably when discussing Heckler's presumption of unreviewability: "non-enforcement" and "inaction." While agency "non-enforcement" might imply "inaction" in most circumstances, the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as "non-enforcement," it is actually affirmative action rather than inaction.The Supreme Court's concern that courts lack meaningful focus for judicial review when presented with agency inaction (see Heckler, 470 U.S. at 832) is thus not present in this situation. Instead of merely refusing to enforce the INA's removal laws against an individual, the DRS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. Absent DAPA, these individuals would not receive these benefits. The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for "administrative convenience. Had the States complained only of the DHS' mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any "focus for judicial review." See Heckler, 470 U.S. at 832.
At 87: (continuing with a footnote included)
Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that-not enforcing the law.67 Nonenforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations. This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such "non-enforcement" decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual. Not only does this proposition run afoul of traditional exercises of prosecutorial discretion that generally receive judicial deference, but it also flies in the face of the very concerns that informed the Heckler Court's holding. This Court finds the DHS Directive distinguishable from the non-enforcement decisions to which Heckler referred, and thus concludes that Heckler's presumption of unreviewability is inapplicable in this case._____
67 See, e.g., In re Aiken Cnty., 725 F.3d 255, 266 (D.C. Cir. 2013) (explaining that prosecutorial discretion includes the decision to not enforce a law, but does not include the discretion not to follow a law). The law requires these individuals to be removed. The DRS could accomplish-and has accomplished-non-enforcement of the law without implementing DAP A. The award of legal status and all that it entails is an impermissible refusal to follow the law.
At 88:
Assuming arguendo that a presumption of unreviewability applied in this case, the Court nonetheless finds that presumption rebutted. Notably, in Heckler, after listing the above addressed concerns underlying its conclusion that an agency's non-enforcement decisions are presumed immune from review under Section 701 (a)(2), the Supreme Court emphasized that any non-enforcement decision "is only presumptively unreviewable." The presumption "may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 832-33.
At 99:
DAPA does not represent mere inadequacy; it is complete abdication.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." See Doc. No. 38, Def. Ex. 2 at 6 (OLC Op.) (citing Heckler, 470 U.S. at 833 (an agency may not "disregard legislative direction in the statutory scheme that [it] administers")). The DHS Secretary is not just rewriting the laws; he is creating them from scratch.
At 111-112: (footnotes omitted)
The DAPA program clearly represents a substantive change in immigration policy. It is a program instituted to give a certain, newly-adopted class of 4.3 million illegal immigrants not only "legal presence" in the United States, but also the right to work legally and the right to receive a myriad of governmental benefits to which they would not otherwise be entitled. It does more than "supplement" the statute; if anything, it contradicts the INA. It is, in effect, a new law. DAPA turns its beneficiaries' illegal status (whether resulting from an illegal entry or from illegally overstaying a lawful entry) into a legal presence. It represents a massive change in immigration practice, and will have a significant effect on, not only illegally-present immigrants, but also the nation's entire immigration scheme and the states who must bear the lion's share of its consequences. See Shalala, 56 F.3d at 597 (concluding the agency's policy guidance was not a binding norm largely because it did "not represent a change in [agency] policy and [did] not have a significant effect on [the subjects regulated]"). In the instant case, the President, himself, described it as a change.Far from being mere advice or guidance, this Court finds that DAPA confers benefits and imposes discrete obligations (based on detailed criteria) upon those charged with enforcing it. Most importantly, it "severely restricts" agency discretion. See Community Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987) ("[C]abining of an agency's prosecutorial discretion can in fact rise to the level of a substantive ... rule.").
In sum, this Court finds, both factually based upon the record and the applicable law, that DAPA is a "legislative" or "substantive" rule that should have undergone the notice-andcomment rule making procedure mandated by 5 U.S.C. § 553. The DRS was not given any "discretion by law" to give 4.3 million removable aliens what the DRS itself labels as "legal presence." See 5 U.S.C. § 701 (a)(2). In fact the law mandates that these illegally-present individuals be removed. The DRS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even nonenforcement of this nation's immigration scheme. It inflicts major costs on both the states and federal government. Such changes, if legal, at least require compliance with the APA. The Court therefore finds that, not only is DAPA reviewable, but that its adoption has violated the procedural requirements of the APA. Therefore, this Court hereby holds for purposes of the temporary injunction that the implementation of DAPA violates the APA's procedural requirements and the States have clearly proven a likelihood of success on the merits.
At 123:
VI. CONCLUSIONThis Court, for the reasons discussed above, hereby grants the Plaintiff States' request for a preliminary injunction. It hereby finds that at least Texas has satisfied the necessary standing requirements that the Defendants have clearly legislated a substantive rule without complying with the procedural requirements under the Administration Procedure Act. The Injunction is contained in a separate order. Nonetheless, for the sake of clarity, this temporary injunction enjoins the implementation of the DAPA program that awards legal presence and additional benefits to the four million or more individuals potentially covered by the DAPA Memorandum and to the three expansions/additions to the DACA program also contained in the same DAPA Memorandum.111 It does not enjoin or impair the Secretary's ability to marshal his assets or deploy the resources ofthe DHS. It does not enjoin the Secretary's ability to set priorities for the DHS. It does not enjoin the previously instituted 2012 DACA program except for the expansions created in the November 20, 2014 DAPA Memorandum.
Signed this 16th day of February, 2015.
/s/
Andrew S. Hanen_____
111 While this Court's opinion concentrates on the DAPA program, the same reasoning applies, and the facts and the law compel the same result, to the expansions of DACA contained in the DAPA Directive.
#8. To: All (#6)
The Court upheld all claims of standing.
Correction: The Court upheld four (4) claims of standing, found parens patriae not yet ripe, and rejected Massachusetts v. E.P.A. standing as the "States have not shown that an injunction against DAPA would redress these particular damages."
#9. To: nolu chan (#8) (Edited)
If you were a judge What would you rule on this case? :)
#10. To: A K A Stone (#9)
If you were a judge What would you rule on this case? :)
I would rule that the States have standing and that the Federal action by Jeh Johnson is unconstitutional.
I believe the appellate courts (Circuit or Supreme) may punt the issue and rule against standing, avoiding the merits of the case.
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