Texas v. USA: DOJ’s request for stay lacks merit

March 2, 2015

In their request for a partial stay of Judge Hanen’s injunction last week, DOJ claims the order “vastly exceeds the relief necessary to redress the limited alleged harms” suffered by the state of Texas. According to their application, the injunction currently applies to “States [which] the Court did not find to have established any injury, and even to States that have informed th[e] Court that they desire and expect to benefit from [DAPA].” At the very least, they claim, “the injunction should be stayed so that it applies only to the implementation of [DAPA] in Texas.”

Such a state-by-state injunction of DAPA would clearly lead to absurd results. Nothing would appear to keep the almost 2 million illegal aliens residing in Texas to travel to another state to claim deferred action status and work permits. Moreover, DOJ raised no case law to back up their request. Law professor Josh Blackman has notedthe case raises a “principles of comity” issue. “Comity” refers to the general principle that a sister court’s ruling should reign supreme in its geographical area and it has been applied to constrain national injunctions that cause interference with previous judicial pronouncements – i.e., halting the army’s ‘don’t ask, don’t tell’ policy nationwide, when a circuit court elsewhere previously ruled it constitutional – No other courts, however, have held DAPA or DACA to be in compliance with the Administrative Procedures Act (Judge Hanen found the programs violated the APA) and therefore no such considerations would seem to apply.

According to Blackman, Texas’s suit is similar to Halbig v. Burwell, a challenge to the ACA’s tax subsidies on the ground that the IRS violated agency rulemaking procedures. In that case, counsel for Halbig argued that when the D.C. Circuit invalidates a regulation under the APA it deems such rulings to have “nationwide effect, for plaintiffs and non-parties alike.”

Finally, DOJ’s request for a partial stay goes against the Obama Administration’s general treatment of state-based regulation of immigration. Even though state enforcement would dramatically free up DHS’s “limited resources,” the Administration has consistently attacked state and local governments that implement initiatives which mirror unenforced federal immigration law. That the DOJ now asks a federal court to do the opposite shows how shameless the Administration’s become in its drive to dissolve national sovereignty and the rule of law.