U.S. District Court Judge Andrew Hanen granted a preliminary injunction to block the implementation of President Obama’s executive actions on immigration – specifically the DAPA program and his expansion of DACA - until he decides on their legality. Constitutional scholars are going to be writing about this for the near future (I recommend reading Josh Blackman’s comments here and our Cato brief here) and the appeals will come quickly. In the midst of this lively debate, the political and policy consequences of Judge Hanen’s ruling should not be ignored.
The political consequences could be immediate. Speaker Boehner could use this moment of GOP “victory” to pass a clean DHS funding bill as he hides behind the preliminary injunction. It could tone down the intensity of the political debate on Capitol Hill now that the courts will decide DACA/DAPA’s future. The GOP does not have the votes to force the Democrats to accept defunding either of those programs. This preliminary injunction allows Speaker Boehner to stop the DACA/DAPA defund fight while claiming some victory and avoiding the defeat he seems to be preparing for. Now he can leave it to the courts with some confidence, more than he is likely to be feeling right in the DHS defunding fight, that they will rule in the GOP’s favor in a few weeks. Regardless, this provides an opportunity for Boehner to skip the bruising DHS funding fight without suffering a political rout.
The policy consequences are more uncertain. Obviously the future of DACA/DAPA depend on how the courts will rule on appeals. If the courts side with the administration in the future, then we’ll be right back where we are now – except maybe without a fight over DHS funding. However, the defunding cheerleaders know that this would happen so they might not be eager to give up the fight so easily (see previous paragraph).
The best possible scenario would be if the GOP leadership on Capitol Hill use this opportunity to pass a clean DHS funding bill, leave the fate of the President’s actions up to the courts, and begin to seriously debate and introduce the liberalizing portions of immigration reform. Senators Hatch, Flake, and others already gave them a head start with the I-Squared bill that would liberalize the immigration of highly skilled workers. Combined with a lower-skilled guest worker visa program, the DREAM Act, and a repeal of the 3/10 year bars, immigration reform’s most important pieces would become law.
Vitally, many conservatives on the Hill have endorsed all of these portions of reform. More importantly, these reforms would improve the immigration system, shrink illegal immigration currently and in the future, and provide human capital that will help grow the economy. It’s a long shot, but a continuing court-dominated procedural and constitutional debate over DACA/DAPA could result in the passage of some of these portions of immigration reform.