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A federal judge in Texas has ordered a halt, at least temporarily, to President Obama’s executive actions on immigration, siding with Texas and 25 other states that filed a lawsuit opposing the initiatives.

In an order filed on Monday, the judge, Andrew S. Hanen of Federal District Court in Brownsville, prohibited the Obama administration from carrying out programs the president announced in November that would offer protection from deportation and work permits to as many as five million undocumented immigrants. The first of those programs was scheduled to start receiving applications on Wednesday.

Judge Hanen, an outspoken critic of the administration on immigration policy, found that the states had satisfied the minimum legal requirements to bring their lawsuit. He said the Obama administration had failed to comply with basic administrative procedures for putting such a sweeping program into effect.

The administration argued that Mr. Obama was well within long-established federal authority for a president to decide how to enforce the immigration laws. But Texas and the other states said the executive measures were an egregious case of government by fiat that would impose huge new costs on their budgets.

In ordering the administration to suspend the programs while he makes a final decision on the case, Judge Hanen agreed with the states that the president’s policies had already been costly for them.

“The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country,” Judge Hanen wrote. “Further, the record supports the finding that this lack of enforcement, combined with the country’s high rate of illegal immigration, significantly drains the states’ resources.”

Ken Paxton, the attorney general of Texas, which is leading the states bringing the lawsuit, hailed the judge’s ruling as a “victory for the rule of law in America and a crucial first step in reining in President Obama’s lawlessness.” He said Mr. Obama’s actions were “an affront to everyone pursuing a life of freedom and opportunity in America the right way.”

Mr. Obama said he was using executive powers to focus enforcement agents on deporting serious criminals and those posing threats to national security. Three-year deportation deferrals and work permits were offered for undocumented immigrants who have not committed serious crimes, have been here at least five years and have children who are American citizens or legal residents.

As part of the package, Homeland Security Secretary Jeh Johnson also established new priorities, instructing enforcement agents to concentrate on deporting the most dangerous criminals, including terrorists and gang members, as well as migrants caught crossing the border illegally.

In his opinion, Judge Hanen accused administration officials of being “disingenuous” when they said the president’s initiatives did not significantly alter existing policies. He wrote that the programs were “a massive change in immigration practice” that would affect “the nation’s entire immigration scheme and the states who must bear the lion’s share of its consequences.” He said the executive actions had violated laws that the federal government must follow to issue new rules, and he determined “the states have clearly proven a likelihood of success on the merits.”

Since the lawsuit was filed on Dec. 3, the stark divisions over Mr. Obama’s sweeping actions have played out in filings in the case. Three senators and 65 House members, all Republicans, signed a legal brief opposing the president that was filed by the American Center for Law and Justice, a conservative legal action organization.

Joe Arpaio, the sheriff of Maricopa County in Arizona, who is known for crackdowns on people living in the country illegally, also filed a brief supporting the states’ lawsuit. In December, a federal judge in Washington dismissed a separate lawsuit by Sheriff Arpaio seeking to stop the president’s actions.

On the other side, Washington and 11 other states as well as the District of Columbia weighed in supporting Mr. Obama, arguing that they would benefit from the increased wages and taxes that would result if illegal immigrant workers came out of the underground. The mayors of 33 cities, including New York and Los Angeles, and the Conference of Mayors also supported Mr. Obama.

“The strong entrepreneurial spirit of immigrants to the United States has significantly boosted local economies and local labor markets,” the mayors wrote in their filing.

Some legal scholars said any order by Judge Hanen to halt the president’s actions would be quickly suspended by the United States Court of Appeals for the Fifth Circuit in New Orleans.

“Federal supremacy with respect to immigration matters makes the states a kind of interloper in disputes between the president and Congress,” said Laurence H. Tribe, a professor of constitutional law at Harvard. “They don’t have any right of their own.”

The states’ lawsuit quotes Mr. Obama as saying many times in recent years that he did not have authority to take actions as broad as those he ultimately took. Mr. Tribe said that argument was not likely to pass muster with appeals court judges.

“All of that is interesting political rhetoric,” he said, “but it has nothing to do with whether the states have standing and nothing to do with the law.”

Judge Hanen, who was appointed in 2002 by President George W. Bush, has excoriated the Obama administration’s immigration policies in several unusually outspoken rulings. The president's supporters have said that Texas officials, who are leading the states’ lawsuit, were venue shopping when they chose to file in Brownsville.

But at a hearing on Jan. 15, Judge Hanen said Brownsville, which sits on the border with Mexico, was an appropriate venue for the suit because its residents see the impact of immigration every day. “Talking to anyone in Brownsville about immigration is like talking to Noah about the flood,” Judge Hanen said.

In a lengthy and colorful opinion last August, Judge Hanen departed from the issue at hand to accuse the Obama administration of adopting a deportation policy that “endangers America” and was “an open invitation to the most dangerous criminals in society.”

The case involved a Salvadoran immigrant with a long criminal record whom Judge Hanen had earlier sent to prison for five years. Instead of deporting the man after he served his sentence, an immigration judge in Los Angeles ordered him released, a decision Judge Hanen found “incredible.” Citing no specific evidence, he surmised that the administration had adopted a broader policy of releasing such criminals.

While acknowledging that he had no jurisdiction to alter policy, Judge Hanen said he relied on his “firsthand, in-the-trenches knowledge of the border situation” and “at least a measurable level of common sense” to reach his conclusions about the case.

“The court has never been opposed to accommodating those who come to this country yearning to be free, but this current policy only restricts the freedom of those who deserve it most while giving complete freedom to criminals who deserve it least,” he wrote.

The mayor of Brownsville, Tony Martinez, was among those who filed court papers supporting Mr. Obama’s actions. “We see a tremendous value in families staying together and being together,” Mr. Martinez said on a conference call on Tuesday organized by the White House. “Eventually we hope to get all these folks out of the shadows,” he said.

Obama Immigration Policy Halted by Federal Judge in Texas,
NYT,
FEB 17, 2015,
https://www.nytimes.com/2015/02/18/
us/obama-immigration-policy-halted-by-federal-judge-in-texas.html

Guantánamo Rulings Change Little

July 22, 2013

The New York Times

By JOE NOCERA

Over the last two weeks, three federal judges have issued rulings on the legitimacy of the recent rough treatment being doled out to the detainees at Guantánamo Bay, Cuba. Under normal circumstances, two of the rulings would add up to a resounding victory for the detainees. But at Guantánamo Bay, where prisoners the government itself acknowledges are not security threats can see no end to their decade-plus imprisonment, nothing is “normal.”

The rulings began on July 8, when Judge Gladys Kessler opined that the force-feeding of detainees who have been on a hunger strike was “painful, humiliating and degrading” — which is to say, precisely, what the detainees and their lawyers have been claiming for months. She scoffed at the government’s contention that the detainees were receiving “timely, compassionate, quality health care.”

Three days later, Royce C. Lamberth, the chief judge for the Federal District Court in the District of Columbia, ruled that prison guards had to stop touching the genitals of the detainees as part of new, tougher search protocols. Since early this year, meetings and even phone calls between detainees and their lawyers have had to take place outside the prisoner’s own “camp.” This meant they had to be searched in this offensive manner both on the trip out to see their lawyers and on the trip back. Because many detainees had religious objections to the genital searches, they were refusing to speak to their lawyers.

(The third ruling, on July 16, by Judge Rosemary Collyer of Federal District Court, disagreed with Kessler. Collyer wrote that force-feeding was humane and that the detainees “had no right to commit suicide.”)

Did anything change as a result of the opinions by Kessler and Lamberth? No. Despite her clear dismay at the treatment of the detainees, Kessler concluded that she lacked the ability to do anything about it because, she said, the judiciary doesn’t have the authority to intervene over the conditions under which the detainees are being jailed.

Lamberth, on the other hand, ruled that he did have the right to intervene. That’s because of a 2008 Supreme Court ruling that detainees have the right to challenge the legality of their detention — for which they obviously need access to lawyers. (Not that it does them much good: the District of Columbia Court of Appeals has made it impossible for a detainee to win a habeas corpus ruling.)

When a lawyer a few days later tried to get the Defense Department to comply with Judge Lamberth’s ruling — he had scheduled a phone call with a client and didn’t want the prisoner’s genitals to be searched — he was told by the government that the Department of Defense would simply not comply with the order. Soon thereafter, the government asked for an “administrative stay” of Lamberth’s order. That meant that it wanted the appeals court to delay the judge’s order until it could get around to asking for an actual stay. As usual, the appeals court did what the government wanted.

And so it goes at Guantánamo Bay. The lawyers representing the detainees make motion after motion, appeal after appeal. It gets them nowhere. With the exception of that one Supreme Court ruling — which had been systematically undercut by the court of appeals — the court system has opted out of dealing with the problem that the Guantánamo prison represents to the country. If the detainees are ever going to get relief, it will have to come from elsewhere.

As I have mentioned previously, some 86 of the 166 detainees at Guantánamo Bay have already been “cleared” by a committee made up of national security officials, meaning they could leave the prison tomorrow without any threat to national security. Recently, the government sent letters to a number of lawyers informing them that their clients would soon be called before a review board that would determine whether they could be added to that list. Although the detainees themselves have largely given up hope of ever getting out — hence the hunger strike — one of their lawyers, David Remes, says, “I keep telling them that it is a lot better to be in Group A than Group B.”

The truth is, there is one person who could get them out tomorrow — if he chose. That same person could stop the military from force-feeding the detainees. I am referring, of course, to President Obama. Yet despite decrying the Guantánamo prison, the president has refused to do anything but stand by and watch the military inflict needless pain and suffering, much of it on men who simply shouldn’t be there. Indeed, in many of the legal briefs filed on behalf of Guantánamo prisoners, the defendant is Barack Obama.

“Article II, Section 2 of the Constitution provides that ‘[t]he President shall be the Commander in Chief of the Army and Navy of the United States,” wrote Judge Kessler in her pained but eloquent opinion. One longs for the day when he finally acts the part.

Guantánamo Rulings Change Little,
NYT,
22.7.2013,
http://www.nytimes.com/2013/07/23/
opinion/nocera-guantanamo-rulings-change-little.html

Judge Challenges

White House Claims

on Authority in Drone Killings

July 19, 2013

The New York Times

By SCOTT SHANE

WASHINGTON — A federal judge on Friday sharply and repeatedly challenged the Obama administration’s claim that courts have no power over targeted drone killings of American citizens overseas.

Judge Rosemary M. Collyer of the United States District Court here was hearing the government’s request to dismiss a lawsuit filed by relatives of three Americans killed in two drone strikes in Yemen in 2011: Anwar al-Awlaki, the radical cleric who had joined Al Qaeda in the Arabian Peninsula; Mr. Awlaki’s 16-year-old son, Abdulrahman, who had no involvement in terrorism; and Samir Khan, a 30-year-old North Carolina man who had become a propagandist for the same Qaeda branch.

Judge Collyer said she was “troubled” by the government’s assertion that it could kill American citizens it designated as dangerous, with no role for courts to review the decision.

“Are you saying that a U.S. citizen targeted by the United States in a foreign country has no constitutional rights?” she asked Brian Hauck, a deputy assistant attorney general. “How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this?”

She provided her own answer: “The limit is the courthouse door.”

The case comes to court at a time when both the legality and wisdom of the administration’s use of targeted killing as a counterterrorism measure have come under question in Congress and among the public. The debate, including the first public discussions of drone strikes by Congress and a major speech by President Obama on May 23, has raised the possibility of a role for judges in approving the addition of Americans to the so-called kill list of suspected terrorists or in signing off on strikes.

Mr. Hauck acknowledged that Americans targeted overseas do have rights, but he said they could not be enforced in court either before or after the Americans were killed. Judges, he suggested, have neither the expertise nor the tools necessary to assess the danger posed by terrorists, the feasibility of capturing them or when and how they should be killed.

“Courts don’t have the apparatus to analyze” such issues, so they must be left to the executive branch, with oversight by Congress, Mr. Hauck said. But he argued, as Attorney General Eric H. Holder Jr. has in the past, that there are multiple “checks” inside the executive branch to make sure such killings are legally justified.

Judge Collyer did not buy it. “No, no, no,” she said. “The executive is not an effective check on the executive.” She bridled at the notion that judges were incapable of properly assessing complex national security issues, declaring, “You’d be surprised at the amount of understanding other parts of the government think judges have.”

Despite Judge Collyer’s evident frustration with parts of the Obama administration’s stance, legal experts say the plaintiffs face an uphill battle. They are Nasser al-Awlaki, father and grandfather of two of the men killed, who wrote about their deaths on Wednesday in The New York Times, and Sarah Khan, mother of Samir Khan. Only Anwar al-Awlaki was deliberately targeted, officials say; Mr. Khan was killed in the same strike, while Abdulrahman al-Awlaki was killed by mistake in a strike officials say was intended for a suspected terrorist who turned out not to be present.

The relatives filed suit late last year, but not against the military and the Central Intelligence Agency, which carried out the strikes, because such lawsuits usually fail on technical grounds. Instead, they sued four officials in charge of the agencies at the time: David H. Petraeus, the former C.I.A. director; Leon E. Panetta, the former defense secretary; and two successive heads of the Joint Special Operations Command, Adm. William H. McRaven and Lt. Gen. Joseph L. Votel.

The lawsuit is known as a Bivens action, after a 1971 Supreme Court ruling that permitted citizens to sue government officials personally under some circumstances for violating their constitutional rights.

The government is asking that the lawsuit be dismissed on several grounds. Mr. Hauck said decisions about targeted killing should be reserved to the “political” branches of government, the executive and legislative, not the judiciary. In addition, he said, allowing a lawsuit against top national security officials to proceed would set a dangerous and disruptive precedent.

“We don’t want these counterterrorism officials distracted by the threat of litigation,” he said.

Pardiss Kebriaei of the Center for Constitutional Rights and Hina Shamsi of the American Civil Liberties Union, representing the plaintiffs, argued that the claims had extraordinary importance because they involved the deaths of Americans at the government’s hands. “The entire goal of Bivens is deterrence,” to discourage officials from infringing the rights of Americans, Ms. Shamsi said.

“The court still has a role to play in adjudicating whether or not a citizen’s rights have been violated,” she said.

At one point, when Mr. Hauck referred to the Constitution, Judge Collyer, 67, who was appointed by President George W. Bush and also serves on the Foreign Intelligence Surveillance Court, interrupted to note that the Constitution prescribed three branches of government, and that she represented one of them.

“The one that’s normally yelled at and not given any money,” she said, sounding as if she was not entirely joking. “The most important thing about the United States is that it’s a nation of laws.”

The judge said that she believed the case raised difficult questions and that she would “do a lot of reading and studying and thinking and try to reach a decision as soon as I can.”