A federal judge in Texas issued an order overnight blocking two new programs authorized in President Obama’s November 20 administrative relief program. With the expansion of Deferred Action for Childhood Arrivals (DACA) set to begin at midnight, the judge’s order comes at the last possible and most disruptive moment imaginable. The order also halts the Deferred Action for Parental Accountability (DAPA) program, set to start in 90 days.
A lawsuit brought by 26 Republican state governments was heard by conservative Judge Andrew Hanen, a George W. Bush appointee. The decision by the judge was fully expected. Attorneys are preparing an appeal of the decision to the Fifth Circuit Court of Appeals in New Orleans, which could be filed as early as this afternoon.
Judge Hanen’s decision is outside the legal mainstream on the issue of prosecutorial discretion as well as on the ability of states to challenge federal immigration policy. In the past, the courts have ruled that immigration law is exclusively under the jurisdiction of the federal government, and that states have a role in immigration law only insofar as the federal government has authorized them. The president’s discretion in enforcement of the immigration laws has been recognized for decades.
Although recent trends indicate that the stay will be lifted and the DACA and DAPA programs will move forward, conservative judges may try to break with recognized precedent in an attack upon the president.