The move could precipitate an argument among the states over Obama’s policies, and will raise a question: If some states have successfully gotten the courts to block Obama’s actions nationwide, what should happen if other states want those actions to proceed? The bid by these states also could make it more likely that the courts lift the injunction and allow his deportation relief to move forward, at least in some states, while the legal battle over them plays out.
Bob Ferguson, the attorney general of Washington state, which is spearheading this action, confirms to me in an interview that at least a dozen states will be on the request.
The background: As you know, Texas and 25 other states have sued to get Obama’s actions overturned as unconstitutional, and Texas district court judge Andrew Hanen recently blocked them temporarily from proceeding, while failing to rule on the underlying legal dispute. The judge justified the temporary injunction by reasoning that the executive actions — which grant deferred action status, plus work permits and other benefits, such as driver’s licenses, to millions — would cause these states irreparable harm, because benefits granted now will cost the states money and be hard to recoup later if the courts do declare his actions unconstitutional.
The Texas ruling put Obama’s programs on hold indefinitely, leaving millions who stood to benefit from them in limbo. The Obama administration is appealing the ruling to the 5th Circuit Court of Appeals in New Orleans, and has indicated it will ask the appeals court to lift Hanen’s temporary injunction by tomorrow. That will happen sooner or later.
When it does, at least a dozen states are also set to submit a brief calling on the 5th Circuit to lift the injunction.
Those states will likely be pretty much the same dozen states — including California, New York, and New Mexico — who joined with Washington state to submit a brief earlier in the case arguing against the preliminary injunction on Obama’s actions. They claimed that blocking those actions threatened them with harm in the form of more families broken up, and would deny them the economic benefits that flow from allowing immigrants to work legally, even for a limited time.
“I’m confident there will be more states than last time,” Ferguson, the Washington state attorney general, tells me. “It’s reasonable to assume the original states will be on there, plus some more.”
The Texas judge obviously imposed the injunction nationwide anyway. But the way in which he did so provides an opening for these appealing states: If the basis for the injunction is the harm Obama’s actions allegedly do to Texas and the states on the lawsuit, then what about the appealing states’ claims of harm to them from the injunction? Thus, the latter states will argue that, at a minimum, the 5th Circuit should lift the injunction for them, because they stand to suffer economic harm if the injunction proceeds. They will also argue that Texas is the only state that has demonstrated it will suffer harm, so the injunction nationwide — and on them — is inappropriate.
“Our fallback position is, don’t force us to live under an injunction we don’t want, based on other states’ inaccurate claims that they will suffer,” Noah Purcell, the solicitor general for Washington state, tells me.
This raises an interesting dilemma. As Francis Wilkinson put it:
What of the dozen states, including California and New York, that filed a brief in the case claiming that undocumented immigrants create economic benefits when they gain lawful employment?…It’s hardly a novel argument; well-funded research supporting it abounds. Yet if that’s the case, then Hanen’s injunction is now doing active harm to the economies of states not named Texas, suppressing both incomes and the state tax revenue derived from them. In other words, if Texas can halt Obama’s actions on the basis of strong feelings about prospective harm, then other states can now petition to reverse Hanen’s injunction on the basis of economic research that his injunction harms them.Even if you find the Texas arguments valid, the end result is that disparate states perceive disparate effects flowing from Obama’s executive action. Why should Texas’s claims have more legal validity than California’s?
It’s a fair question, and it may now be aired before the 5th Circuit. It’s unclear whether the move will succeed. But it raises the possibility that a number of states could be released from the injunction in short order — while the underlying legal dispute is resolved, which could take months — possibly allowing large swaths of Obama’s executive actions to move forward.
UPDATE: Post edited slightly for accuracy.