A federal district judge in Texas said Monday that the Obama administration cannot carry out a plan to defer deportations for millions of undocumented immigrants, most of them parents of children born here in the United States. Many were scheduled to begin applying for reprieves from deportation as soon as this week, but what's next for this group is now uncertain. It's possible that a higher court will step in right away to allow the program to go ahead, at least until the judicial system reaches a final decision. Meanwhile, funding for the Department of Homeland Security runs out at the end of this month, and Congress has been considering legislation that would effectively rescind Obama's actions as a condition for extending more money to the department. As judges and lawmakers respond to Monday's news, we're also catching up on the immigration debate, and this post contains answers to a few of the questions we've been asking ourselves:
- How did this all get started?
- What did Obama's action do?
- What does the district court's injunction mean now?
- What about Congress?
- What happens if Homeland Security shuts down?
- So was the executive action legal?
How did this all get started?
For years, migrants have been coming illegally into the United States to seek work, and now about 11.3 million people are living in the country without documents, according to the Pew Research Center. The majority of them are from Mexico, the federal government has estimated.
Everyone agrees that the U.S. immigration system is flawed, and a couple of years ago, it looked as though Congress might change things. By a vote of 68 to 32, the Senate passed a bill that would have given many of those undocumented immigrants a chance at becoming citizens, while also dedicating enormous new resources to security along the southern border.
In the House, though, the bill never came up for a vote. House Speaker John Boehner (R-Ohio) stuck to an informal rule barring legislation from the floor if it did not have the support of a majority of the party controlling the chamber. It's conceivable the bill might have passed the House with votes from Democrats and a few Republicans, but because most Republicans opposed it, we'll never know.
After last year's midterm election, President Obama pointed to Congress's failure to pass a bill and announced he would allow a limited group of undocumented immigrants to apply for a temporary reprieve from deportation. That decision, known as an "executive action," is what led to the current dispute.
What did this executive action do?
Among other things, the action gave about 3.5 million parents living here without papers and whose children who are U.S. citizens the chance to apply for deferred deportation and permits to work. Several other categories of immigrants would also be able to apply, and in total the action extended protection to about 4 million people, as this handy chart shows.
Those undocumented immigrants would have to reapply after three years. They'd be eligible for Social Security and Medicare and tax breaks designed to assist the working poor, but not for help from the federal government under the Affordable Care Act (more widely known as Obamacare). For more on how the executive action worked, the details are here.
But since the district court ruled Monday against the program, what happens now?
Nobody really knows.
A group of states brought the suit against the federal government, claiming that providing immigrants with additional public services -- education, law enforcement and so on -- would place a burden on their budgets. They convinced the judge, Andrew S. Hanen, that the Obama administration has to prove its case before it goes ahead with the order, writing that there would be no way of "putting the toothpaste back in the tube" if the federal government began accepting applications from undocumented immigrants.
Yet Hanen hasn't yet ruled on the central question in the case, whether Obama had the authority to offer to delay the deportations of so many undocumented immigrants. And some legal experts think that the U.S. Court of Appeals for the Fifth Circuit might quickly intervene to lift Hanen's injunction on the program, given that determining immigration policy is seen as the responsibility of the federal government, not the states. If the judges on the Fifth Circuit agree, they could act within a few weeks to allow the program to continue, but it's hard to say whether they agree with Hanen and if they don't, just how long it will take them to respond.
"We have to look at this decision for what it is. It is a decision by one federal district court judge," Attorney General Eric Holder said at the National Press Club on Tuesday. "This is a matter that will ultimately be decided by a higher court -- if not the Supreme Court, then the federal court of appeals."
What about Congress?
Meanwhile, Congress is confronting a decision of its own. Conservative lawmakers frustrated by Obama's executive action refused to extend funding for the Department of Homeland Security past the end of this month. At this point, it isn't clear whether they're willing to continue funding the department unless Obama agrees to sign legislation that would prohibit him from carrying out the action, which he is unlikely to do.
A compromise hasn't emerged yet, and some Republicans are concerned the public will fault them if they allow funding for homeland security to lapse. Based on the district court's recent decision, they might agree to fund the department on the reasoning that the courts are sorting everything out, but the party's most conservative lawmakers seem unlikely to go along. An easy way out for Boehner would be to reintroduce the original Senate measure that passed two years ago. But with many Democratic lawmakers losing their seats in the midterm election, it isn't clear whether the bill would pass in the new Congress. We'll have to wait to see what the Republican leadership in Congress will do.
What happens if the Department of Homeland Security shuts down?
Obama's allies have been accusing Republicans of using national security as a political football by refusing to secure funding for the department. Yet even if a lapse in funding shuts down DHS temporarily, about 85 percent of the department's employees would likely continue working until a compromise was reached. Many of them work in positions labeled "essential," as they're responsible for protecting lives or property.
Indeed, the department would still be able to accept and process applications for deferred deportations under the executive action, since the agency responsible for handling deferrals collects fees that would allow it to continue operating. Since none of these consequences are especially terrible from Obama's point of view, these facts arguably reduce Republicans' leverage in negotiations.
So is Obama's executive action legal?
There are actually two questions here. One is whether Obama had the authority to begin this program. The president's supporters say he does under existing immigration law, which Presidents Ronald Reagan and George H.W. Bush used to offer similar programs to undocumented immigrants decades ago. David Frum and Danny Vinik have good arguments for and against that idea.
Another, more immediate question is whether state governors have the authority to sue the federal government to stop the program from continuing. Judges aren't allowed to make a ruling whenever they think someone has broken the law. Someone else has to prove that they've been somehow harmed first and ask the courts to make them whole. The states that sued the federal government in this case are arguing that they'll have to provide more public services as a result of Obama's decision, which will be costly. You can read more on the legal debate around these two questions here.
Emily Badger contributed to this post.
