One day before hundreds of thousands of immigrants were to begin applying for work permits and legal protection under an executive order issued by President Obama, the administration stopped the program. The stop was in response to an order by federal district judge Andrew S. Hanen in the case of Texas v. United States. Professor Stephen Yale-Loehr discusses the case in this report.
Professor Loehr explains that the judge did not rule on the constitutionality of the executive order but rather on a procedural issue. The judge ruled that the government had failed to comply with the Administrative Procedure Act (APA) in the way it announced expansion of the deferred action program for children and a new deferred action program for parents of children. The government will appeal this ruling to the Fifth Circuit Court of Appeals.
The plaintiff states in this case essentially hand-picked the judge in this case by filing the case in his district and hoping that he would draw the case, as he is perceived as being hostile to the kinds of actions the administration proposed to take. Professor Loehr opines that the states probably hoped that the judge would rule on the constitutionality of the executive order, but the standard procedure in courts is to decide cases on procedural grounds and avoid deciding on constitutional grounds whenever possible.
The administration characterized the ruling as a speed bump on the path to implement the proposed immigration programs. Professor Loehr says the district court ruling is a significant speed bump in that it may take several months for the appellate court to rule on the correctness of the action by the trial court, and that delay will be a problem for the undocumented immigrants who were ready to move forward on the programs outlined by the president. However, the government will probably prevail because the deferred action program is not a new one, so the notice and comment requirements of the APA probably do not apply in this situation.
In spite of the ruling, the government has made some moves to implement the new programs. They have rented office space and have begun training officers in the implementation of the programs. However, nothing more will happen until the appellate court issues its ruling. As to the longer run, there have been hopes that Congress would produce a comprehensive immigration reform bill. However, that presently seems unlikely because of the polarized atmosphere in Washington.
Professor Loehr thinks it conceivable that, at some future date, Congress will pass comprehensive immigration reform. But “a lot may depend on our economy.” An improving economy with jobs to spare will probably make people more open to the idea of having immigrants fill those jobs, perhaps as early as 2017. Professor Loehr adds that some employers are already having a hard time finding the foreign national employees they need. The H-1B program allows employers to hire foreign nationals who have at least bachelor’s degrees for certain jobs. The quota for this program is presently small enough that some employers are unable to fill jobs.
Stephen W. Yale-Loehr is an Adjunct Professor of Law at the Cornell University Law School. He is one of the nation's preeminent authorities on U.S. immigration and asylum law. A prolific scholar, he has written many law review articles, and is author or co-author of four standard reference works. He is the 2001 recipient of the American Immigration Lawyers Association (AILA)'s Elmer Fried Award for Excellence in Teaching and the 2004 recipient of AILA's Edith Lowenstein Award for excellence in advancing the practice of immigration law. The Legal Broadcast Network is a featured network of the Sequence Media Group.