Anti-Immigration Lawsuit on Shaky Ground

Immigrant rights protesters (Photo by Jana Birchum)

Last November, President Barack Obama issued an executive order that would halt the immediate deportation of 4.4 million undocumented immigrants and render another 290,000 eligible for the Deferred Action for Childhood Arrivals program. In response, opponents – a coalition of 25 states, led by Texas – filed suit in federal court challenging the president's authority to unilaterally act on the matter. On Dec. 3, the plaintiffs asked for a preliminary injunction halting Obama's order, seeking to prevent it from taking effect as litigation meanders through the court system: DACA is scheduled to begin accepting applications Feb. 18.

Last Thursday, Jan. 15, in Brownsville, U.S. District Judge Andrew Hanen heard arguments on the injunction; he said he wouldn't issue a ruling on the request before Jan. 30. But this latest salvo isn't exactly striking fear in the hearts of Austin's immigrant rights advocates. Instead, it's seen as nothing more than a political statement with little chance of prevailing in court – although it was filed before Hanen, who has attacked the administration's immigration policies, precisely because the plaintiffs expect he'll look on it favorably.

"It's a protest lawsuit," says immigration attorney Mehron Azarmehr. Amelia Ruiz Fischer of the Texas Civil Rights Project is similarly underwhelmed: "This is political posturing and legally tenuous. Every president since Ford ... did similar things. Were there lawsuits filed then? No." Those "similar things" are past executive orders, such as the amnesty presidents Ronald Reagan and George H.W. Bush granted to certain groups of undocumented immigrants. The shaky core of the litigants' argument – that the president may have violated the "Take Care Clause" of the U.S. Constitution, which limits presidential power – has prompted a collective sigh of relief from those who support immigration reform.

Ruiz Fischer notes Arizona Sheriff Joe Arpaio filed a similar suit last year, only to see it dismissed. "Before a party can bring a lawsuit in court, they have to show they have standing in court and they suffered an injury," she said. "That's the first hurdle they have to jump before actually getting to the issue of whether the president has the authority. They have a tough battle ahead in proving the states will be injured."

Azarmehr agrees. "This is why lawyers get a bad name, because they bring lawsuits like this," he laments. "Constitutionally, the president has tremendous power when it comes to international affairs and immigration. It's one of the few areas where there is a clear delineation of power."

Although the Washington, D.C.-based Center for Immigration Studies' anodyne slogan "low-immigration, pro-immigrant" suggests a measured approach to the issue, Mark Krikorian, the think tank's executive director, is firmly against the executive order. "This is probably the most breathtaking expansion of executive power in a century, and the courts are another means of trying to restrict the expansion of this imperial presidency." On the other hand, Cristina Tzintzún, executive director of the Workers Defense Project, is buoyed by the broad support for immigration reform among a majority of Americans, according to various polls. She notes the counterintuitive nature of the litigation, considering immigrants' considerable contributions to the state economy. "If you look at it from a sheer economic standpoint, you should want those people to be registered, pay taxes, and be members of society. It doesn't make sense economically not to extend rights for immigrants when one in 10 of our workers are undocumented."

Indeed, in the battle for immigrant rights, advocates are less worried about this lawsuit than they are about a slew of bills filed in the 84th Legislature, which they believe are designed to further marginalize a particular demographic. Both sides of the immigration fight are poised for combat on numerous fronts in the months ahead.