United States District Court Judge Andrew S. Hanen unsurprisingly issued a preliminary injunction late Monday preventing President Obama’s new immigration policy from going into effect. The policy that he announced on November 20th would have protected approximately 4 million undocumented immigrants who have children who are American citizens or legal residents and they have not been convicted of any crimes in the United States.

I said, ‘unsurpisingly’ because last August Judge Hanen accused the Obama administration of adopting a deportation policy that was “an open invitation to the most dangerous criminals in society.” The lawsuit, which was filed in December by Texas and 25 other states, seeks an order declaring the policy null and void on the ground that the president exceeded his executive authority under the U.S. Constitution. Given what Judge Hanen said in August, I do not believe it is a coincidence that the lawsuit was filed in the Southern District of Texas where he is a judge.

The preliminary injunction, which went into effect immediately, does not decide the merits of the lawsuit. Instead, it prevents the president’s policy from taking effect until a final order has been entered. Judge Hanen ruled that that the states had demonstrated a substantial likelihood of success on the merits of their lawsuit and they faced substantial threat of harm if the injunction were not granted while the lawsuit was pending. The order is appealable.

I believe Judge Hanen’s order will be set aside because of theSupremacy Clause in Article VI, Clause 2 of the United States Constitution and the related legal doctrine of federal preemption. Immigration, like regulation of interstate commerce, is a federal matter. The states cannot enact laws or pass regulations that conflict with federal laws and regulations. The legal term is called “standing.” The states lack standing to challenge President Obama’s new policy. See Arizona v. United States, 132 S.Ct. 2492 (2012) where the Supreme Court of the United States struck down three provisions of an Arizona statute that conflicted with existing federal immigration law.

The three provisions (1) created a state-law crime for being unlawfully present in the United States, (2) created a state-law crime for working or seeking work while not authorized to do so,  and (3) authorized warrantless arrests of aliens believed to be removable from the United States. The Court held that existing federal immigration law preempted Arizona’s effort to enact those provisions.

Judge Hanen has allowed his fact-free personal opinion to dictate his decision. As someone said long ago about our government’s unlawful war in Iraq, “the facts were fixed around the policy.”

Shame on Judge Hanen.

For more information, go here and here.

To read a summary of Arizona v. United States, go here.

Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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