Let us stipulate that President Obama’s non-enforcement of the federal immigration laws, coupled with his even more patently lawless decree of positive legal benefits to illegal immigrants (e.g., work permits, reprieves from deportation), is an outrage. In fact, as I argued in Faithless Execution, it qualifies as an impeachable offense.
All that said, the remedy for lawlessness is not lawlessness. The comeuppance for an executive branch that egregiously oversteps its limited constitutional authority is not a judiciary that responds in kind. Thus, I’m at a loss to understand the enthusiastic applause on the right for an opinion and order issued on May 19 by Judge Andrew Hanen of the federal district court in Brownsville, Texas.
The ruling came in connection with a case brought by the governments of 26 states to challenge the validity of two of Obama’s unilaterally decreed immigration non-enforcement programs: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and, to a more limited extent, Deferred Action for Child Arrivals (DACA).
Judge Hanen is justifiably outraged by the egregious misconduct of Obama Justice Department lawyers, a pattern of misrepresentations to the court that he found to be “intentional, serious and material.” In a nutshell, beginning in late 2014, Justice Department lawyers repeatedly promised that DAPA and its amendments to DACA were on hold and would not be implemented until mid February 2015. These representations lulled the plaintiff states into forgoing remedies they might otherwise have sought — e.g., restraining orders and a permanent injunction — to limit the damage done by Obama’s lawless conferral of benefits (which trigger various state expenditures) on illegal aliens. In reality, DAPA was proceeding apace, and applications by over 100,000 illegal aliens were granted during the purported suspension.