By Josh Gerstein
2/17/15 – 8:55 PM EST
A carefully targeted lawsuit by states opposed to President Barack Obama’s immigration executive actions hit a bulls-eye Tuesday, forcing postponement of a key element of the president’s plan hours before it was to get underway.
But the injunction issued late on the President’s Day holiday by a federal judge appointed by President George W. Bush could just be the beginning of a rocky legal ride for the Obama White House.
Obama vowed to appeal the ruling, but that challenge will head to a court considered the most conservative federal appeals court in the country: the 5th Circuit. Its active judges are Republican by a 2-1 margin.
Still, the president sounded optimistic that his legal position will ultimately be vindicated.
“I disagree with the Texas judge’s ruling, and the Justice Department will appeal,” Obama said at a meeting with new Defense Secretary Ash Carter that was hastily opened to access by journalists.
“This is not the first time where a lower court judge blocked something or attempted to block something that ultimately was shown to be lawful. And I’m confident that it is well within my authority and position of the executive branch’s prosecutorial discretion to execute this law,” the president said in response to questions. “I think the law is on our side and history is on our side.”
The White House’s best chance to get Obama’s immigration efforts back on track may lie with the Supreme Court, which issued a 5-3 ruling in 2012 backing strong discretion for the federal government in immigration enforcement. (Justice Elena Kagan recused herself from that decision but seems likely to back Obama in the latest fight.)
The current dispute could wind up at the high court on an emergency basis within days, but administration officials were not specific about whether they will immediately demand that Obama’s immigration actions be allowed to resume.
“We are still in the process of looking at the opinion and trying to decide what steps we might take next,” Attorney General Eric Holder told reporters at the National Press Club Tuesday. “We have to look at this decision for what it is: it is the decision by one federal district court judge. I expect—have always expected that this is a matter that will ultimately be decided by a higher court, if not the Supreme Court then a federal court of appeals….This, I would view as an interim step in a process that has more to play out.”
The White House insisted that Hanen’s ruling did not surprise them, even though it required cancellation for now of the first round of applications for an expanded program to allow immigrants who arrived illegally in the U.S. as children to get quasi-legal status and work permits. The judge’s order also came as the administration and its allies had a nationwide media blitz set Tuesday to urge illegal immigrants eligible for an expanded program to file applications starting Wednesday.
“This is something we were prepared for,” White House Press Secretary Josh Earnest told reporters on a late-afternoon conference call. “Those who are veteran court-watchers were not surprised by this particular judge’s ruling based on his previous statements on this issue.”
Earnest appeared to be referring to comments Hanen has made in previous immigration cases, including one more than a year ago where he may have foreshadowed his latest ruling.
The Department of Homeland Security “has simply chosen not to enforce the United States’ border security laws,” Hanen wrote in a 2013 case, highlighted by the Associated Press in December. He called the government’s failures “both dangerous and unconscionable,” but also declared, “This court takes no position on the topic of immigration reform, nor should one read this opinion as a commentary on that issue.”
A spokesperson for Gov. Greg Abbott (R-Texas), who spearheaded the suit, said it was filed in Brownsville because of the impact of illegal immigration there. By filing in that court division, opponents of Obama’s immigration plan had a 50 percent chance of getting the case in front of Hanen and a 50 percent chance it would be assigned to another judge who is a Clinton appointee.
White House aides were long on criticism of Congressional Republicans for obstructing immigration reform legislation and short on direct rebuttal of the points Hanen made in his opinion.
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