"Politically, this might be the most important case. It is the challenge by states to President Obama's executive order on immigration. The principal question is whether the state of Texas even has the standing to get to court and challenge President Obama's program. In order to have standing, they need to show injury. Texas says that they are required to give lawfully admitted aliens the benefit of a drivers' license and that the cost to the state of those licenses is a significant injury.
"They also say that this part of the program is a 'rule' under the definition of the Administrative Procedure Act. If so, it cannot lawfully go into affect until the federal government has provided public notice and ability to comment, which it didn't do. The argument on the other side is that this is not a rule; it's a statement of policy. But the court of appeals agreed that it was a rule, and as a result they've halted the program—not just in Texas but across the country—until the notice and comment requirement is met.
"If Texas can get to court, they'd like to challenge the decision not to deport more than 400,000 people a year, including particularly the parents of children who are lawfully here. The government contends—and I think they have the better of this argument—that we can't possibly deport 11 million people, or however many Texas wants to deport, every year. The federal government doesn't have the personnel, money or time to do that, unless Congress gives them more, which it won't do. Given that limit on resources, immigration policy is a 'matter committed to the discretion of the agency,' in this case the Department of Homeland Security.
"What I don’t think really is part of the case is whether the federal courts have the ability to say that the president is disregarding the law. In the first place, he’s not. The law cannot require him to do the impossible—to deport millions of people. No one can force the federal government to deport anybody who is here illegally, let alone everybody. Moreover, not that many people will get additional benefits immediately even if the program continues, because it won’t be back in effect until the summer. And if the Republicans get in office next January, they can change the national policy anyway.
"I think the administration has a pretty good chance in this case, and their agenda won't be much harmed if they lose. So the republic will go on whichever way this case goes. But a loss would be a tremendous political slap at Obama."
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