Different opinions on Judge Hanen’s preliminary injunction on Obama amnesty

Obama’s executive amnesty grants work authorization, Social Security eligibility, and eligibility for important federal and state benefits to virtually all aliens who have been in the U.S. since 2010, had a baby in this country, and have not committed felonies. The Obama administration argued this is a routine application of “prosecutorial discretion”—the authority of executive officials to set priorities for enforcement of the law and to refrain from enforcement in cases where the public interest is least urgent.

U.S. District Judge Andrew Hanen ruled, in State of Texas v. United States of America, Case No. B-14-254, District of Texas, February 16, 2015, that prosecutorial discretion is limited to non enforcement and doesn’t entitle the executive branch to grant affirmative benefits such as work permits and welfare without statutory authority and notice-and-comment rule-making.

Judge Hanen’s granting of a preliminary injunction is now on appeal to the Fifth Circuit. Former Tenth Circuit Court of Appeals Judge and now Stanford law professor Michael McConnell summarizes Judge Hanen’s opinion this way: “The 123-page memorandum opinion carefully lays out the legal case against the program, concluding that the Obama administration lacks statutory authority to change the law without congressional action, and that the administration did not comply with the minimal procedural requirements of public notice and comment under the Administrative Procedure Act.” Judge McConnell concludes that, “it will not be easy for the administration’s lawyers to persuade [the appeals court] that Judge Hanen got the law wrong.”

The New York Times, on the hand, finds Judge Hanen’s opinion to be “shaky” and “trivial.”

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