It’s nothing unexpected, Nevada Attorney General Adam “Train Wreck” Laxalt has inserted Nevada into the Texas lawsuit (pdf) concerning executive actions on immigration. This is one Tea Party invitation anyone could have predicted Laxalt would accept. The lawsuit is also the kind of political theater the Tea Party/GOP enjoys: All Puff, Fluff, Sound, Fury based on the premise that an objection to an executive action on ideological grounds is always “constitutional.” So, what exactly has “Train Wreck” gotten us into?
#1. An argument over immigration policy with only an extremely thin veneer of constitutional controversy. The second point made in the case is that: “This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.” Yes, and I am a giraffe…because I say I am. Because the remaining points in the suit are all about Immigration, about the proposed DREAM Act, about DACA, about the Nava-Martinez Case, about the DHS directive. It’s easy to make a pronouncement disclaiming any anti-immigrant intent; it’s far more difficult to assert this claim when the objections are predicated exclusively on actions involving immigration policy.
It is also all the more difficult to explain away the anti-immigrant content of the litigation when the lead plaintiff (the state of Texas) has said the case is about immigration policy. [Newmax] One of the contentions is that the implementation of the Administration’s immigration policy creates an economic harm for the state. If it’s not about immigration policy then what happens to the economic harm element? It’s about immigration. And, we can figure this out from the next clue – where the case is being filed.
Interestingly enough, the case was handed to Judge Andrew Hanen, a Bush appointee, who is already on record opposing the Obama Administration’s immigration policy. [AmThink] How convenient? It might have been easier (and more literally convenient) had the case been sent to a court in Dallas? Austin? But, for obviously political reasons the case is sent to Judge Hanen’s realm in beautiful downtown Brownsville.
#2. An argument about immigration policy in which the Office of Legal Counsel (Department of Justice) has already established guidelines for executive action. The language in the lawsuit implies that the President didn’t follow the directions of the Office of Legal Counsel in a “unilateral creation of the DACA program.” It might have been helpful if someone had perhaps read through the OLC’s directive in full? There is this segment which we should take into consideration:
“Nonetheless, the nature of the Take Care duty does point to at least four general (and closely related) principles governing the permissible scope of enforcement discretion that we believe are particularly relevant here. First, enforcement decisions should reflect “factors which are peculiarly within [the enforcing agency’s] expertise.” Chaney, 470 U.S. at 831. Those factors may include considerations related to agency resources, such as “whether the agency has enough resources to undertake the action,” or “whether agency resources are best spent on this violation or another.” Id. Other relevant considerations may include “the proper ordering of [the agency’s] priorities,” id. at 832, and the agency’s assessment of “whether the particular enforcement action [at issue] best fits the agency’s overall policies,” id. at 831.”
In short, if the agency’s resources require prioritization of actions then the agency/executive have the authority to create priorities. In this case the priorities are to deport undesirable individuals such as those who have committed crimes, etc., and to place youngsters with no criminal history at the bottom of the ‘to do list.’ And, did the Department of Homeland Security do what is permissible under the law?
“In our view, DHS’s proposed prioritization policy falls within the scope of its lawful discretion to enforce the immigration laws. To begin with, the policy is based on a factor clearly “within [DHS’s] expertise.” Chaney, 470 U.S. at 831. Faced with sharply limited resources, DHS necessarily must make choices about which removals to pursue and which removals to defer. DHS’s organic statute itself recognizes this inevitable fact.”
The argument over authority could now be reversed such that we could ask if the Texans and their Tea Party allies may interfere in the lawful prioritization of executive department implementations of statutes? In one of the sillier arguments presented the Texans and Tea Partiers offered the following:
“Although OLC had cautioned the President that it was “critical” to DACA’s legality that the Administration evaluate every application on a case-by case basis, the President and DHS ignored that advice. According to the latest figures available, the Administration granted deferred action to 99.5-99.8% of DACA applicants.”
Merely because a policy might apply to 99.5% of the applicants doesn’t mean that all such applications will be automatic. In fact, the Obama Administration policy doesn’t provide automatic categorization, as we can see from the OLC analysis:
“And, significantly, the proposed policy does not identify any category of removable aliens whose removal may not be pursued under any circumstances. Although the proposed policy limits the discretion of immigration officials to expend resources to remove non-priority aliens, it does not eliminate that discretion entirely. It directs immigration officials to use their resources to remove aliens in a manner “commensurate with the level of prioritization identified,” but (as noted above) it does not “prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities.” Johnson Prioritization Memorandum at 5. Instead, it authorizes the removal of even non-priority aliens if, in the judgment of an ICE Field Office Director, “removing such an alien would serve an important federal interest,” a standard the policy leaves open-ended. Id. Accordingly, the policy provides for case-by-case determinations about whether an individual alien’s circumstances warrant the expenditure of removal resources, employing a broad standard that leaves ample room for the exercise of individualized discretion by responsible officials.” (emphasis added)
We might boil this down to some essentials. First, the Department of Homeland Security has the authority to prioritize its activities based on the resources at its command. Secondly, the Obama immigration policy does NOT create any categories of ‘removable aliens’ who cannot be removed. And, third, there is, in fact, provision for a case by case determination of an alien’s circumstances and responsible officials may exercise their discretion.
That the Texans and Tea Partier Allies may wish to jump up and down crying “Amnesty!” doesn’t mean that the actual Office of Legal Counsel guidelines, and the actual Obama Administration’s policy directives, and the actual Department of Homeland Security plans are anything close to a rational definition of ‘amnesty.’
#3. A lawsuit including the now-defunct “child crisis at the border.” The Nava-Martinez section and the ‘defendants cause a humanitarian crisis’ portion are a rehash of the right wing talking points during the reactionary assault on a very well intentioned law enacted in the waning days of the Bush Administration, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. [Vox]
#4. A lawsuit which strings together some quotations from the President about the necessity of enacting comprehensive immigration reform statutes. Amen to that, but neither the President’s actions in terms of the DACA directives nor the Trafficking Victims Protection Act preclude the enactment, or non-enactment for that matter, of comprehensive immigration acts. Nor can it be established that since Congress didn’t do anything about immigration policy reform that the President can’t do anything either.
#5. A lawsuit which is blatantly anti-immigrant per se. The DHS directive will increase the number of undocumented persons in plaintiff states. If we remove the deportation threat the U.S. will seem more attractive to undocumented persons. It will trigger a new wave…” And this is terrible because…? Any sovereign state should have control of its borders, but that doesn’t mean the Great Wall of China (a ‘wall’ which also served as a channel for international trade as well as defense). Additionally, the states will have to spend money on childrens’ health care and indigent health services… and when did we become so callous that taking care of children, even other people’s children, is to be categorized as an unconscionable expense?
#6. A political suit which could easily put the Republican Party in Nevada at peril in the next round of elections. “Attorney General Adam Laxalt announced today that Nevada will join a multistate coalition suing President Barack Obama’s contentious deportation deferral program, his first major publicized legal action and one he’s carrying out without the backing of Gov. Brian Sandoval.” [LVSun]
The suit may very well make it through Judge Hanen’s court, but for the most part this will probably be yet another exercise in futility by the reactionary Right, for the reactionary Right, and from the reactionary Right. This matters little to the ideologues of the Right. We’re looking at what highlights the differences between Establishment and Reactionary Republicans, and we may also be looking at what a Train Wreck the Nevada GOP could become?