A pair of recent federal court rulings should convince Americans on all sides of the immigration debate that reform is an urgent priority. The rulings hamstring the president whether he’s trying to enforce border security (to please hard-liners) or to ease the plight of families residing here illegally (to please Hispanics and the pro-reform lobby).
Most of the headlines have been captured by a ruling issued early last week by Judge Andrew S. Hanen, an unabashedly outspoken critic of expanded immigration in Brownsville, Texas, that invalidated the president’s executive order on immigration. The ruling stops the government from issuing work permits and providing legal protections to hundreds of thousands of undocumented immigrants. Less well-known is a decision late Friday by Judge James E. Boasberg of the Federal District Court in Washington, D.C. He ordered the Department of Homeland Security to end a practice of detaining most women and children caught crossing the border illegally even if they had applied for asylum.
The earlier ruling is by far the most troubling. Foes of the president’s executive order went court-shopping and found Judge Hanen in Brownsville. His anti-immigration views were well-known. His ruling has been derided by legal experts for making basic mistakes on standing and executive authority, including a failure to make a distinction between federal agency rules and executive orders.
The Obama administration rightly decided to seek a stay, sending a signal that it will vigorously defend its actions and the president’s executive authority on immigration. But the ruling has once again cast into limbo a large number of immigrants who had made initial moves to seek legal protection under the order.
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Then there is Judge Boasberg’s ruling, which found that it was illegal to detain families at the border while their asylum claims are processed as a means of deterring others back home. Depriving asylum claimants of liberty for the sake of “sending a message” to others does not meet legal standards, the judge ruled.
To be fair, the judge found no proof that the administration put in place a blanket policy to deny freedom to all asylum claimants along the Southwest border, but there was a clear tendency to do so, resulting in increased detentions. It’s hard to blame the administration for wanting to stop what it deemed an invasion of asylum applicants from Central America, but this ruling, as opposed to Judge Hanen’s, seems both fair and impartial.
If all this sounds akin to a damned-if-you-do, damned-if-you-don’t scenario, that’s because it is. Neither the sensible, compassionate approach to immigration reform via executive order nor the government’s stepped-up measures to protect the borders has been able to clear the first legal hurdle. The president should lay out his next steps Wednesday when he appears at an immigration town hall at Florida International University’s Modesto Maidique Campus.
Bottom line: The courts can’t fix what’s wrong with the nation’s immigration system. A political solution is required, which means Congress and the president must work together — what a concept! — to get the job done.
There has been so much mutual recrimination and finger-pointing that optimism seems unwarranted, but it must surely be obvious that there is no practical, reasonable alternative. The problem will get worse the longer it festers. And the going will only get harder when the presidential primary season makes bipartisan legislation impossible to achieve.