Political conservatives make a lot of hay about “activist” judges when it comes to rulings that counter their political beliefs, such as giving gay people the right to marry or maintaining the healthy separation of church and state.
But they don’t seem to mind when that activism skews in their favor. That’s what happened on Monday when U.S. District Court Judge Andrew S. Hanen issued a temporary restraining order halting President Barack Obama’s executive action to defer deportations of millions of undocumented immigrants whose children are U.S. citizens or lawful residents, if they qualify and pay back taxes. That program, along with the expansion of the 2012 program to defer action for people brought to the country as children, was set to begin Wednesday.
In fact, Hanen, of Brownsville, Texas, is the exemplar of an activist judge. Even before taking on this case, he has been outspoken about immigration and highly critical of Obama’s deportation policy. In his 123-page explanation of why he was granting a temporary injunction, he contorts logic to validate the spurious claims made by the 26 states, including Texas, suing to stop the president’s use of executive order on immigration.
Hanen found the flimsiest of technicalities on which to hang this stay: That the states have a right to challenge established federal authority with regard to immigration because there would be a cost to provide driver licenses to undocumented immigrants. In Texas, that equals approximately $130 per immigrant, a minimal cost that would be offset by taxes those qualifying for the deferred action program would be required to pay.
Legal scholars and court watchers believe this injunction is just a road bump for the president, who has agreed to stop implementation of the program but is appealing.
“I have always expected that this is a matter that will be ultimately decided by a higher court – if not the Supreme Court, then a federal court of appeals,” Attorney General Eric Holder said Tuesday.
And so it seems it shall be, though it means millions of people who saw a ray of hope about their future must return to the shadows until this political fight is decided.
We, like many Californians, applauded Obama’s action in November to take immigration matters into his own hands. It has been clear for a long time that Congress has no interest in fixing a broken system that exploits millions of people and provides a perfect boogeyman for any GOP candidate looking to score political points.
Of all states, California suffers the most from federal immigration inaction. There are an estimated 2.6 million undocumented immigrants in the state, many of whom work in the state’s vital agriculture industry.
California Sen. Barbara Boxer and others have called upon congressional Republicans to come up with their own immigration policy if they hate the president’s so much. Unlikely. The only thing the base could agree upon is spending more money to “secure” the border and wholesale deportations. Even Congress, we hope, doesn’t have the stomach to suggest spending billions to round up 11 million actual humans – who are our neighbors, classmates, employees, friends, co-workers, even family members – is a good idea.
What Congress must do, however, is pass a bill to continue to fund the Department of Homeland Security (a creation of President George W. Bush by executive action in 2001). The Republican-controlled Congress has stalled a funding bill as a way to protest the president’s immigration action. In so doing, the House and Senate jeopardize all the important work that homeland security does to keep Americans safe.
And now that the GOP has got some judicial activism working in its favor on immigration, there’s no reason to hold up DHS funding.