Yesterday afternoon a federal judge in Texas indicated he was likely to block President Obama's Deferred Action for Childhood Arrivals (DACA) process. The order, written by Judge Reed O'Connor, came in a lawsuit challenging DACA and prosecutorial discretion filed by nativist lawyer and Kansas Secretary of State Kris Kobach on behalf of ICE Union Boss Christopher Crane. The judge found that the DACA process, which gives eligible DREAMERs a temporary reprieve from deportation, likely, violates the law.
So what does this mean for DREAMERs and others granted deferred action? In the end probably very little.
First, nothing has happened yet. The judge has not issued an injunction blocking DACA. In fact, he is still considering the Department of Justice's argument that Crane's lawsuit is really a federal employment dispute that should be dealt with administratively. For now all the judge has done is order the lawyers to file legal briefs on the jurisdictional issue by May 6, 2013.
Second, regardless of what the judge decides, there is no question that prosecutorial discretion, the legal tradition that is the basis for DACA, is enshrined in the law. As the U.S. Supreme Court said recently in Arizona v. United States -- the case challenging the Arizona immigration law -- "a principal feature of the removal system is the broad discretion exercised by immigration officials."
Third, even if this judge rules in Crane's favor -- which appears likely -- and even if his ruling is later sustained all the way to the U.S. Supreme Court, at most the Department of Homeland Security will have to add another unnecessary bureaucratic process -- at taxpayer expense -- to the DACA process and the exercise of prosecutorial discretion. As the judge wrote, "However, DHS's ability to exercise its discretion at later stages in the removal process by, for example, cancelling the Notice to Appear or moving to dismiss the removal proceedings is not at issue in the present case, and nothing in this Order limits DHS's discretion at later stages of the removal process."
In other words, the question is not whether ICE can exercise discretion, but when.
Fourth, the impact will be limited to geographic location. In fact, it's worth asking Kobach and Crane why they chose to file their lawsuit in the Northern District of Texas. Certainly, the federal court in Washington, D.C., which routinely considers many difficult administrative law questions, might have provided the best venue to handle the plaintiffs' claims.
So rest assured, DACA is alive and well. The administration has unquestionable authority to set policy and enforcement priorities. And, however many lawsuits these anti-immigration restrictionists file, prosecutorial discretion is enshrined in law, and it's obvious their real motive is to undermine any vaguely pro-discretion, pro-migrant policies.
This case unmasks the ugly side of the immigration debate, including the antics of restrictionist immigration attorney Kris Kobach and ICE Union Boss Chris Crane. Kobach's claim to fame is that he authored the draconian Arizona immigration law, the guts of which were thrown out by the U.S. Supreme Court last year. Crane, the union boss, has been a vocal opponent of DACA and prosecutorial discretion in general. As I've said before, maybe someone should remind him that he is president of the ICE Union, not President of the United States. Both Crane and Kobach testified in opposition to immigration reform before the Senate Judiciary Committee earlier this week.
Finally, and perhaps most importantly, the lawsuit filed by Kobach and Crane underscores the need for Congress to enact immigration reform. What kind of America do they and others in the dark corner of the restrictionist fringe envision? Kobach didn't even have the decency answer Senator Durbin directly when he asked him at the Senate Judiciary hearing whether he thought DREAMERs should be deported. How many more promising high school graduates will be denied a chance to dream and relegated to immigration limbo -- not accepted in the country they have struggled against all odds to enrich -- and forced to fear being handcuffed and jailed boarding a train or a plane without proper papers?
The system is badly broken and it won't be fixed through litigation or administrative policy alone. What's needed is congressional action.
The time to act is NOW.