I recently interviewed Harry DeMell, an immigration lawyer since 1977 and a member of the American Immigration Lawyers Association, about the current immigration crisis.
Schupak: President Obama's executive action of last November, stopping deportation and granting benefits to parents of citizens and legal residents, has been stopped by one judge in Texas. Is that correct?
DeMell: That's right.
Schupak: So let me get this straight, Mr. DeMell. You think that the immigration decision out of the U.S. District Court in Texas was correct.
DeMell: Yes.
Schupak: Even though this will mean that the president will not be able to use his discretion in the enforcement of the law, doesn't he have the right to do this especially in immigration matters?
DeMell: Yes and maybe. The decision by Judge Hanen is just a preliminary injunction issued to delay the beginning of the president's program until a full hearing on the merits can be conducted. A preliminary injunction delays things, keeps them in place until the court can conduct a hearing or trial and look carefully at the issues. The program is not stopped, just delayed. The judge weighed the harm to the plaintiffs and the defendants and determined it would do no harm to the government to wait in starting the program that would grant many rights to a class of aliens, since the court might determine that the harm to the various states might outweigh the rights of the president here.
Schupak: You didn't answer my last question.
DeMell: Yes and maybe. The president is charged with the enforcement of our laws. When President Obama decides not to prosecute someone on policy grounds, he may be on sure footing, but when he grants rights and benefits he needs a legal basis to do so. He also must comply with the Administrative Procedure Act when he takes actions that affect the rights and procedures that our federal agencies are responsible for. He did not here, and the Court is holding his feet over the fire on this issue.
Schupak: The president says that this case will be overturned by the U.S. Court of Appeals.
DeMell: Right now, the only thing to appeal is the preliminary injunction. Only that will be heard by the 5th Circuit. That's the most conservative federal appeals court in the nation. They will almost certainly confirm Judge Hanen's decision and stop the start of the president's program until a full hearing on the merits can be conducted.
Schupak: Why so?
DeMell: It's a separation of powers issue. Congress makes the laws and the executive branch administers them, but the judiciary has the right to review these actions and the appeals court will allow Judge Hanen the time to do so.
Schupak: So why is President Obama so sure of himself on this issue?
DeMell: He shouldn't be. His advice on this issue is shaky. The courts will almost always allow themselves the time necessary to finish their job, unless the issue is so pressing that they must act immediately. This is not that urgent.
Schupak: Do you think the president will prevail in the end?
DeMell: OK. That's the meat of this discussion. My answer is yes and maybe. The president has real discretion when he decides to prosecute a case or not. He will win on that issue. When he grants rights, he either needs congressional approval or he must comply with the administrative procedure act. He did not comply with that act. He took a short cut that any lawyer familiar with administrative law could have told you he needed to do.
Schupak: The President has taught constitutional law. Surely he understands this.
DeMell: In the complaint filed in this matter the plaintiffs quote the president as first saying he has no power and then quoting him as saying he does. President Obama's power on the granting of rights and benefits without congressional support is at best questionable. His right to do so outside the Administrative Procedure Act is unlikely. I suspect that the administration's eagerness to act on this issue clouded its judgment. You might remember the last time we spoke on this issue was just after the president's announcement in November, and I told you it could take almost a year to complete the administrative process. Now it may take longer still.
Schupak: What will happen if the president loses on this issue?
DeMell: The legal process can be very slow. It will be up to the next president.