Fasten your seatbelts, it’s going to be a bumpy ride now that a federal judge has temporarily blocked the Obama administration from launching two new programs that were part of its proposed immigration reform.
Monday night saw Judge Andrew Hanen issuing a preliminary injunction in a lawsuit filed by 26 states, one that now forces the Obama administration to halt implementation of its executive action on immigration. The action was announced in November and would’ve expanded immigration programs significantly, adding to the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of Americans (DAPA) as early as February 18.
But according to Judge Hanen, Obama overstepped his bounds. Specifically with regards to the Administrative Procedures Act, which requires there to be a notice and comment period for an action like this. Hanen claims in his opinion that if the federal government wanted to do these things they should have provided enough of a notice and comment period in the federal register, but as such “the government has pointed this Court to no law that gives [the Department of Homeland Security] such wide-reaching discretion to turn 4.3 million individuals from one day being illegally in the country to the next day having lawful presence.”
This delay makes an already awkward process more awkward. Here’s a problem, described by Angelo Paparelli on Nation of Immigrators, that was bound to happen had Obama’s order on deferred action for illegal not been halted:
Imagine the scene at the company lunchroom. A group of obviously jovial workers are huddled together at a table filling out USCIS applications for benefits under the DACA (Deferred Action for Childhood Arrivals) or DAPA (Deferred Action for Parental Accountability) program. Bert Busybody, the director of HR, walks by and asks them why they are so gleeful. In unison, they reply, “because President Obama is allowing us to work legally.” Arguably, these workers must now be terminated from employment since Bert, as a supervisory representative of the employer, seems to have actual knowledge of the workers’ unauthorized status.
So the question must be asked: what if some employees already told their bosses they were working illegally, and that they were going to take care of it—but now cannot?
And this isn’t only about the employees—it impacts employers as well. As Robert Cohen of Porter Wright described on LXBN TV back when this executive action was first announced, the deferred action benefit presented an important positive for certain businesses.
For those industries where they have been typically reliant on immigrant labor…it will make their compliance with employer sanction and verification law much easier–it’ll make it possible, actually–so the individuals will be able to get work authorization and employers will be able to comply. For those who have been complying in the past it is going to broaden their potential workforce and it will make it easier for them to find the necessary workers.
The federal government now has to wait to make any moves until Judge Hanen issues a final opinion on the subject, but it’s unlikely he’d issue an injunction unless he there’s a clear chance he could continue siding against the government in his final opinion. Meanwhile the administration has already claimed they will file an appeal at the Fifth Circuit Court of Appeals, but the program could still months away at best. . That’s a big jolt to the millions of individuals who were poised to file today.
The silver lining in all this is that Hanen is aiming to keep this opinion and order narrow. He’s sided with the 26 states that say they have a case against the federal government for these actions, and he’s filed an injunction to stop immigration reform. But for now, the scope of the case lies in the finer points— that the administration didn’t do its duty right in implementing this policy— and less in the broad strokes— that the law is unconstitutional or illegal in and of itself. It may be just a footnote, but it’s something.
Regardless, opponents to immigration reform are celebrating a victory, while supporters insist it’s just the first bump in a very, very long road. Those advocates have confidence that they can win the court battles, they’re more concerned with the long-term impact on the program and people, as Dara Lind writes for Vox:
When the administration created the first deferred-action program in 2012, for young unauthorized immigrants, they discovered the success of the program relied on people signing up — and on the ground, organizers learned that finding eligible immigrants and getting them to apply was the hardest part. Now, community groups are trying to educate a much larger, more diffuse immigrant population about the new deferred-action programs, and persuade them that it’s safe to apply. But news and misinformation about the lawsuit is spreading confusion and fear among the very people these groups are trying to reach.
Organizers are worried about a “chilling effect”: by the time applications do open for deferred action, immigrants will have been intimidated out of applying, because they won’t believe the program is safe or permanent.
There’s a lot of stuff in the air and as of now there’s no time table for how long people–be they workers or employees–will have to wait to have all their questions answered.