Millions in limbo as judge halts Obama’s immigration action

President Obama’s executive actions on immigration have been delayed after a federal judge in Texas ruled it didn't follow proper legal procedure. Alan Gomez of USA Today and Stephen Legomsky of Washington University Law School join Judy Woodruff to discuss what may happen in the courts and how it affects the millions of people who were supposed to be shielded from deportation.

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    We now turn to that immigration decision handed down overnight.

    A federal judge in Texas temporarily froze President Obama's latest executive orders on immigration, blocking them, as a legal challenge by two dozen states moves through the courts. The judge's action centers on the steps the president initiated in November. At that time, he said he would waive deportation for an additional four million to five million people, some brought to the U.S. as children and others who are the undocumented parents of American citizens.

    Sign-ups for those waivers were supposed to begin tomorrow. But last night's injunction halted that. In a strongly-worded opinion, Judge Andrew Hanen of the Southern District of Texas wrote that the president's actions are — quote — "a massive change in immigration practice." But Hanen ruled largely on process, writing that the policy — quote — "should have undergone the notice-and-comment procedure," essentially get 90 days of comments before going into effect.

    The Justice Department announced that it will appeal this decision. President Obama spoke today to reporters in the Oval Office, stating that the law and history are on his side.


    I disagree with the Texas judge's ruling. And the Justice Department will appeal. This is not the first time where a lower court judge has blocked something or attempted to block something that ultimately was shown to be lawful.


    Joining me now to discuss exactly what this means and how it might impact the fight over funding and immigration on Capitol Hill are Stephen Legomsky, professor of law at Washington University in Saint Louis, and Alan Gomez. He's an immigration reporter for USA Today based in Miami.

    And we welcome you both.

    Professor Legomsky, it's our understanding the judge in this case didn't rule on the merits of what the president did, but rather on a more narrow procedure in how this was carried out. Explain that.

    STEPHEN LEGOMSKY, Washington University School of Law: Yes, that's correct, Judy.

    Under a statute called the Administrative Procedure Act, certain federal rules and policies have to go through a notice-and-comment process, as you were describing. The way it works is that the federal government issues a proposed version of this rule. Then the public has a chance to submit comments. The government evaluates those comments and then decides how best to proceed in the light of those comments.

    The issue here is that there is an exception to that procedure. It's not required when all the government is doing is offering guidance as to how it proposes to exercise a discretionary power. The plaintiff states, for their part, are saying, we don't believe that real discretion is being exercised. We think these decisions are likely to be rubber-stamped.

    The government for its part is saying, look, the secretary's memo explicitly and repeatedly commands the officers on the ground to look at the facts of each individual case and to exercise discretion. And there is simply no reason or evidence to think that the officers are going to systematically disobey the secretary. And they also point out that there have been about 38,000 DACA denials so far, and including some examples where it was undone on…… of discretion.


    And that's a — and that's a reference to the applications for waivers from deportation.

    We know that another federal district court earlier ruled in favor of what the president did. Why does this ruling prevail then?


    Well, the action by the district court for the District of Columbia, as you have pointed out, reached the opposite result.

    It simply refused to issue an injunction. So the result of that is that really nothing happened. This is actually positive action by this particular judge, and therefore, unless the decision is undone on appeal, the administration would have to comply with the notice-and-comment procedure that this judge has said was necessary.


    So, Stephen Legomsky, the president himself said today that he's going to — the administration is going to be appealing. We know they are going to appeal through the Fifth Circuit in New Orleans, known to be a conservative court.

    What happens then? Do we have any sense of how long this could take? Do you expect it to go as high as the Supreme Court? What are the expectations?


    Well, that's a great question. It's very hard to predict exactly.

    What the government can do once it files its appeal is, first of all, ask the court of appeals to temporarily stay, that is put on hold, the preliminary injunction that Judge Hanen ordered. And they can also ask the court to try to expedite its review.

    I think there are a couple reasons why it might want this expedited. One is that even though the cost of this program, the administrative processing cost will be paid for by the applicants themselves, there's a cash flow issue. The government has the hire all these adjudicators. It has to train them. It has to acquire physical space, et cetera, before the revenue comes in. So they are going to want some indication that the program is actually going to fly.


    All right, let me — I want to — go ahead. Let me — I want the move on Alan Gomez now, who reports on the immigration issue regularly.

    Alan, what is the practical effect of this going to be on the immigrant community in this country?

  • ALAN GOMEZ, USA Today:

    Well, the practical effect is that you have basically thousands of people who had their paperwork ready, their applications ready to go. They were ready to run tomorrow to the post office and start mailing these in to the Department of Homeland Security.

    And obviously they woke up to this news this morning. So there's been a lot of — I have been talking with a lot of them today, a lot of just painful confusion throughout that community. Some of them are just sort of kind of giving up and saying, all right, this — we kind of figured something like this was going to happen, so they're moving on, but a lot of them are really trying to get out the message that an appeals court could overturn this ruling, that this program can still go into effect at some point.

    So there's a lot of advocacy going on today to urge them to continue to keep their paperwork, to continue getting ready, so that if and when that day comes when the program restarts, that they can go ahead and start jumping in right then.


    But, meantime — in the meantime, they're truly in limbo here?



    I mean, as one of them put it to me, we're used to tough trails. We're used to trust voyages, a lot of them kind of talking about those long treks that they made through the deserts and the mountains of the southwest border to get here. So, as they put it, oh, a couple legal hurdles isn't that big of a deal.

    But, absolutely, it's absolutely painful for a lot of them. There was a lot of tears shed around the country as they woke up to that news this morning. A lot of folks woke up in the middle of the night expecting this ruling and seeing it. And, so, yes, it's really difficult for them to sort of — to get so close, to be one day away from being able to finally be legal, being able to finally go to work without having to worry about looking over your shoulder, and then all of a sudden it just gets taken away from them like this. So, yes, it's been a rough day.


    And just quickly, a question about where this leaves the political fight over immigration. We know in the Congress right now Republicans holding up funding for the Department of Homeland Security, they say, until the president withdraws these executive orders. The president saying, I'm not going to do that.

    Some Republicans today saying, well, maybe we back off and let this go through since the fight is now in the courts. Others disagree. What do you see happening on the political front?


    Well, that's — the Republicans are basically faced with a fascinating opportunity right now. They're off this week, so they have got a few days to sort of get together and figure out what they are going to do.

    On the one hand, they can say, OK, look, this court has ruled that this — potentially, that this is a program that needs to be stopped, so we need to go further. We need to push harder to make sure that the president ends this program and that we use this funding bill to end it.

    But on the other hand, they can easily say, they have got some cover now, saying, all right, look, it looks like the courts are going to take care of this. At least we got one ruling that's favorable to us, so now we can kind of pull out that — we can pull that out of the funding fight and just allow the Department of Homeland Security funding bill to move forward without risking a government shutdown, which is what we're facing by February 27, when the department runs out of money.


    Well, it's certainly gotten all of our attention. We will be watching very closely.

    Alan Gomez, Professor Stephen Legomsky, we thank you both.


    Thank you.


    Thank you.

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