Federal immigration officials will be
breaking the law if they carry out President Barack Obama’s
executive order to let at least 4 million undocumented
immigrants stay in the country, attorneys for Texas argued as
they urged a U.S. judge to block the policy now while he decides
whether it’s legal.

Texas, joined by half the states, asked U.S. District Judge
Andrew Hanen at a hearing today in Brownsville to block Obama’s
immigration policy until they’ve had a chance to fully challenge
it in court. Hanen didn’t issue a ruling.

“The president does not get to decide what the law is,”
Andrew Oldham, an attorney for Texas, told Hanen at the hearing.

Obama’s Nov. 20 order grants quasi-legal status to more
than a third of the estimated 11 million undocumented immigrants
already in the U.S. Undocumented immigrants must have been in
the country for more than five years or have a child who is a
U.S. citizen, or have been brought here themselves as children,
to qualify for U.S. work permits and be protected from
deportation under the new policy. They must also pass a criminal
background check.

Today’s hearing follows the Jan. 14 vote in the Republican-led U.S. House of Representatives to slash funding for the
immigration programs at the heart of Obama’s policy.

Suspend Laws?

At issue in court is whether the president can
“unilaterally suspend federal immigration laws,” create a
“massive” bureaucracy and hand out millions of dollars in
benefits, and then insulate that decision from review “by any
court at any time by calling it executive action,” Oldham said.
“States representing half of this country say he cannot.”

A dozen more U.S. states, in court papers filed last week,
urged Hanen, whose courthouse is less than a mile from the
Mexican border, to reject attacks on the president’s immigration
order. States backing Obama say the policy will benefit the
economy, law enforcement and immigrant families.

Texas filed its case at the state’s southernmost tip, where
issues concerning illegal immigration have dominated headlines
for more than a year. Brownsville has a front-row seat to the
“humanitarian crisis” that has swept more than 1,000
undocumented immigrants a day -– many of them unaccompanied
children — across its border in the past year, according to the
states’ complaint.

Better Life

“We’re where the rubber meets the road,” Hanen told
lawyers today. “Within a few miles of this courthouse, there
are probably thousands of illegal aliens doing nothing more than
trying to make a better life for their families.”

Unless Hanen blocks them, immigration officials will soon
begin processing paperwork to protect certain immigrants from
deportation and provide them with temporary work permits and
some federal benefits including Social Security and Medicare, a
process the states say will be tough to stop once it starts.

“Granting an injunction would preserve the status quo,”
Oldham said. “And give 25 states a day in court” before the
policy takes effect, he added.

Texas, which sued the Obama administration on Dec. 3, seeks
to overturn the president’s policy, which was made without
approval of Congress. The states say Obama violated the
Constitution and lacks authority to grant federal benefits to
people who enter the country illegally.

Broad Discretion

U.S. lawyers today urged Hanen to deny the states’ bid,
arguing that the federal government has broad discretion under
the Constitution to “prioritize enforcement resources.”

“The purpose of this policy is to continue to focus on our
priorities, which are to stop border crossings and remove
threats to our nation,” Kathleen Hartnett, a Justice Department
lawyer, told Hanen.

Congress ordered immigration officials to prioritize the
removal of criminals and recent immigrants who lacked family
ties but didn’t provide the Department of Homeland Security with
sufficient funding to do so, Hartnett said. By shifting away
from “low-priority aliens,” Homeland Security can spend more
on catching dangerous immigrants and those without family ties
to the U.S., she said.

The Obama administration also said in court papers that
judges lack authority to decide whether the president abused his
power by changing immigration policies without Congress’s
approval. Under a 1985 Supreme Court ruling, “An agency’s
decision not to exercise its enforcement authority, or to
exercise it in a particular way, is presumed to be immune from
judicial review,” White House lawyers said.

Harry Truman

The states say judges may review any presidential action to
ensure the balance of power is preserved. The last president to
unilaterally suspend the law during an emergency situation was
Harry Truman, and the Supreme Court blocked executive orders he
issued during a steelworkers’ labor dispute in 1952, the states
said.

More than 1,000 undocumented immigrants, many of them
unaccompanied children, have been crossing the border every day
into Texas, according to the states’ complaint. The states fear
an even larger wave of immigrants will try to enter the U.S.
illegally on the mistaken belief Obama’s new policy will let
them stay, according to the complaint.

“This policy only applies to people who have been here
since 2012,” Hartnett told Hanen. There shouldn’t be an influx
of new immigrants “on the expectation of receiving deferred
action because they will be turned away,” she said.

Oldham said the policy will likely spark a surge of new
arrivals who’ll be encouraged by earlier U.S. policies that were
expanded after being initially restricted to undocumented
immigrants who’d been in the U.S for a long time.

“This is the second time they’ve done it in two years,”
Oldham said, referring to Obama’s 2012 program to protect some
undocumented children from deportation. “People think: They’ve
done it twice in two years. Maybe they’ll do it again in 2016.”

The case is Texas v. U.S., 1:14-00254, U.S. District Court,
Southern District of Texas (Brownsville).

To contact the reporter on this story:
Laurel Calkins in Brownsville, Texas at
lcalkins@bloomberg.net

To contact the editors responsible for this story:
Michael Hytha at
mhytha@bloomberg.net
David Glovin