DAPA and The 5th Circuit–Three Reasons Why Obama Failed to Win Approval of the Policy Change

A federal appeals court on Tuesday denied the Obama administration’s request to lift a hold on the president’s executive actions on immigration, which would have granted protection from deportation as well as work permits to millions of immigrants in the country illegally.
Two of three judges on a panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, left in place an injunction by a federal district judge in Brownsville, Tex. The ruling comes in a lawsuit by 26 states against actions President Obama took in November. Many of the initiatives were scheduled to take effect this month.The appeals court found that Texas and the other states did have sufficient legal grounds to bring the lawsuit and that the administration had not shown it would be harmed if the injunction remained in the place and the programs were further delayed.

Why did this happen?  Many people will tell you that it is because the lawyers for Texas did a great job in finding the right District Court Judge (Hanen), and then lucked into a majority GOP 5th Circuit Panel to win a 2-1 decision.  That is true.  What most folks will not tell you is why we here in the first place.

What was Texas actually complaining about?  That DAPA was going to cause them to issue driver’s licenses that would cost the state money.  A farce, but a farce that played well enough to three judges. And, that Obama did not publish what it argued was a “rule” or “regulation” in the Federal Register (Obama argued it was a “policy” change and thus did not need to get published in the Federal Register).  That’s it.  Okay, the state’s also argued about unconstitutional blather, but that was never decided and frankly, they lose on that issue.

So, WHY did Obama’s DAPA policy fail.  Its rather simple. First, Obama did not publish his DAPA policy in the Federal Register.  Some very smart people pointed out to Obama shortly after Judge Hanen’s decision that all he had to do to address the Judge’s complaint was to publish notice, under the Administrative Procedures Act, claim emergent circumstances (which he could justify), and the program could have taken effect by May.  Of course, Obama did not do this.  Perhaps on the advise of his lawyers he chose to fight rather than just completing the administrative step of publication.  Or, perhaps he wanted the program to be held up for political gain.

Second, Obama also lost because he did not have the right attorneys on this case.   Obama’s lawyers were NOT immigration lawyers from the DOJ, but rather attorneys from the Office of Civil Rights who were NOT experts on immigration law.  This was obvious when they did not understand how USCIS works, how it issues work permits for three years to those who should not have gotten them, and how they failed to follow up timely with Judge Hanen on clarifying his order about the ENTIRE Policy Memo Stay issued by the Judge.   It this case, I am going to blame the lawyers.

Finally, Obama underestimated the hatred of him and his policies by those opposed to him and to a sensible Immigration policy change.  People like the Governor of Texas do not care about national elections.  He does not care that the GOP will now certainly lose the presidential election in 2016.  They do not care that the next democratic president will likely nominate three more Supreme Court justices (possibly four) and that the GOP will lose the next generation of important cases and political arguments.  People like the Governor of Texas only care about themselves and the now, not about the big picture of national politics and the future.   Because Obama does not get this, he did not see this litigation coming, and he did not plan accordingly.