Judge Andrew S. Hanen, last night, made an important decision. In fact, he made one of the most momentous decisions in the history of constitutional jurisprudence. But now higher courts must uphold him. After that: will they enforce that decision? Can they enforce it? Or will Obama defy the courts? And in so doing, provoke the people to rise up against him at last?
Judge Hanen and his decision
Judge Hanen heard the case of Texas v. United States (case no. 1:14-cv-00254), in the U.S. District Court for the Southern (Brownsville, Texas) District of Texas. Twenty-six States, including Texas, sued the United States government over an executive memorandum on amnesty for illegal immigrants. The order in fact came not directly from Barack Obama, but from his Secretary of Homeland Security, Jeh (sic) Johnson. Mr. Johnson called his policy “Deferred Action for Parents of Americans and Lawful Permanent Residents,” or “DAPA for short. Tomorrow (Wednesday, 18 February), the Department planned to issue residency and work permits to these people. Not only would they promise not to deport them; they would find jobs for them. Jobs a lot of American citizens and truly lawful residents could use.
But Jeh Johnson made an invalidating mistake. He failed to follow the Administrative Procedures Act. That Act says anything that presumes to change law-enforcement, regulatory, or other policy must allow time for Congress to act. Mr. Johnson did not even do Congress that much courtesy.
Accordingly, Judge Hanen enjoined Secretary Johnson and his subordinates from so acting.
Judges don’t normally enjoin defendants, even when defendants ask them to. To do this, Judge Hanen had to find two things:
- Texas and the other States will likely win their case on the merits.
- These States will suffer “irreparable harm” if they must follow Jeh Johnson’s orders anyway.
Bob Unruh at WND has more detail. According to him, Judge Hanen said how the federal government harms the States:
When apprehending illegal aliens, the government often processes and releases them with only the promise that they will return for a hearing if and when the government decides to hold one. In the meantime, the states – with little or no help from the government – are required by law to provide various services to this population.
Naturally Mr. Johnson said he will appeal. No doubt the Fifth Circuit Court of Appeals will act fast on that appeal. What will they then do?
Reaction to Judge Hanen
The Texas Attorney General, of course, praised this order.
— Texas Attorney General (@TXAG) February 17, 2015
So also did the American Center for Law and Justice:
Conn Carroll at Townhall.com has more detail on what Judge Hanen did, in effect. He stopped any further changes to immigration law, as per Jeh Johnson’s memo. He did not roll back an earlier change Obama made in June of 2012, for “the DREAMers.”
More to the point: no matter what the Fifth Circuit does, the losing side will appeal to the Supreme Court. And: the Supreme Court cannot hear the case sooner than March of 2016. In the middle of Presidential election season. Obama won’t be on the ballot. But, just as in the Midterms, his policies will be. Including this one.
And he might decide to paraphrase President Andrew Jackson:
Judge Hanen has made his decision. Now let him enforce it.
Now suppose he does. And he might. If the Supreme Court upholds Judge Hanen, that will stick in Obama’s craw. He will never accept it.
And that might be “what it will take” for the people to move against him. Obama has by now alienated several ranking military officers. But none of them will move without a sense the people would support them.
Are you serious, Mr. President? Are you honest-to-God serious? Why, I could walk out of here tonight, and offer myself as a candidate for the office of President. By tomorrow morning I could be seated at that desk, holding precisely the mandate you hold so dear. And what’s more, Mr. President, you know it, and I know it, and everybody knows it. So don’t tell me that by tomorrow I will have seized an office without benefit of support.
– Actor Burt Lancaster, as General James M. Scott USAF, in Seven Days in May (dir. John Frankenheimer; with Burt Lancaster, Kirk Douglas, and Fredric March; Paramount Pictures, 1964
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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