Texas judge did Obama a favor on immigration

The Obama administration is plotting its next move to rescue expanded immigration deferred-action programs blocked by a Texas judge. Undocumented immigrants who may qualify for the programs are wondering whether the programs will ever go into effect. Here's why the judge's order is actually a good thing for both the president and the immigrants who may have qualified under the announced programs.

U.S. District Judge Andrew S. Hanen ruled that there was a strong likelihood that the administration should have followed the federal Administrative Procedure Act before announcing the programs as a done deal. According to the judge, the nature of these expanded programs was such that the public should have been given notice and a chance to weigh in before the programs took effect.

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First, the order is good for the undocumented immigrants who may qualify for these programs. There is at least a chance that Judge Hanen's order is correct. The court's 123-page order is not some shoddy political hit piece by an anti-immigrant judge as is being portrayed in some quarters. It is a careful, narrowly reasoned application of a federal law that is designed to ensure that far-reaching administrative regulations do not go into effect without the public having an opportunity to give input to the issuing federal agency.

President Barack Obama
Kevin Lamarque | Reuters
President Barack Obama

If Judge Hanen is right and the expanded programs were established unlawfully, it is better that the undocumented immigrants who would seek to take advantage of those programs know that now. As the judge observed late in his order, if he had denied the injunction and the individuals had accepted Homeland Security Secretary Jeh Johnson's "invitation to come out of the shadows, there may be dire consequences if" the Deferred Action for Parents of Americans program "is later found to be illegal or unconstitutional. The DHS — whether under this administration or the next — will then have all the pertinent identifying information for these immigrants and could deport them." In the meantime, "there is no indication that these individuals will otherwise be removed or prosecuted" at this time. Also in the meantime, potential beneficiaries of these programs are properly being advised by immigration attorneys to continue to collect the documents necessary to show they are qualified for these programs if and when they go into effect.

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Second, the order is good for the administration. It may be that the only problem with the expanded immigration programs winds up being the procedural flaw on which Judge Hanen's temporary order is based. If that is so, the administration could fix that problem by giving proper public notice and accepting proper public input. Yes, the expanded programs will be delayed in that instance, but only somewhat more than they would have been delayed had proper procedures been followed, again assuming that Judge Hanen was right on this point. It may also be that there is no problem at all with the programs, in which case removing any uncertainty would allow for the programs' secure implementation without the specter of later judicial invalidation.

Of course, it is possible that a court may find that the administration did not only violate the procedural law, but that the administration also unconstitutionally exercised law-making authority that belongs exclusively to Congress. But, again, it is better for both undocumented immigrants and the administration to know that before the new programs are up and running.

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In issuing the order that he did, Judge Hanen indisputably acted within the constitutional scope of the judicial role. For now, the political branches of government must wait. And, for all concerned, that's a good thing.

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.