On the Preliminary Injunction against Obama’s executive amnesty

The opinion by Judge Andrew Hanen of the Federal District Court in Texas, granting a preliminary injunction against implementing Obama’s executive amnesty, has been said to be a temporary order. It is that, because if the plaintiffs (State of Texas and 24 other states) don’t win at trial on the merits the injunction will be dissolved. The order granting the preliminary junction is now on appeal to the 5th Circuit, and its decision is expected soon. An emergency hearing has been granted.

The emphasis that some are making about the P.I. being “temporary” is somewhat over done. Sure, if the 5th Circuit overturns it then it will have been very temporary. But if it’s upheld then it will continue in place until the end of the trial and that could be a while. Moreover, a preliminary injunction has several requirements that a plaintiff must show before it will be granted. One of those is that the plaintiff must show that there is a substantially likelihood of prevailing on the merits of the case at trial. Judge Hanan found that there is a substantial likelihood of prevailing on the merits. Therefore, the appeal is going to address that issue unless the injunction can be dissolved on other grounds.

The most likely “other grounds” in Federal court is the issue of standing. Judge Hanan seems to have anticipated this and spent almost one-half of his more than 100-page opinion on whether Plaintiffs have standing, finding that they do. Clearly, Judge Hanen was trying to issue an order that will survive the present appeal. The judge even grounded his decision on the easiest grounds to substantiate, that it violates the Federal Administrative Procedure Act by not publishing the proposal and allowing a notice and comment period before making it final. The judge expressed no opinion on the Constitutional ground of separation of powers.  That makes is easier for the 5th Circuit to agree that the plaintiffs have shown they are likely to prevail on the merits.

We’ll soon know if Judge Hanen’s judicial strategy was successful.

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