Patterico's Pontifications


Federal Judges Suggest Obama Is Disingenuous in DAPA Amnesty Case

Filed under: General — Patterico @ 7:48 am

As JD noted last night, a panel of the Fifth Circuit yesterday upheld the temporary injunction halting Obama’s amnesty. Basically, the judges said that Obama could exercise prosecutorial discretion and not prosecute/remove certain aliens deemed a lower priority, but probably could not deem them to be here lawfully such that they could obtain work permits, driver’s licenses, and other privileges of those here lawfully.

I read through the opinion last night and was struck by a couple of passages. In this one, the majority judges noted language in the amnesty decree that purported to make the amnesty discretionary and “case by case” — but said, in essence, that this language was disingenuous: designed to make it seem discretionary when it actually is not:

The agency’s characterization of both the DACA and DAPA criteria exudes discretion—using terms such as “guidance,” “case-by-case,” and “prosecutorial discretion.” But a rule can be binding if it is “applied by the agency in a way that indicates it is binding,” and the states offered evidence from DACA’s implementation that DAPA’s discretionary language was pretextual.

That’s a nicer word for disingenuous, which itself is a nicer word for “bullshit” — but you get the point. In this regard, the court (as had the trial judge below) noted that Obama had declared that he wouldn’t even go after people who don’t qualify for the amnesty:

Although a person who expected to be denied DACA relief for discretionary reasons would be unlikely to apply, the self-selection issue is mitigated by the district court’s finding that “the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances).” Texas, 2015 WL 648579 at *50.

Finally, in a passage that seems to be little remarked upon, the judges chided the Justice Department for arguing two opposite positions in separate cases:

[The government] claims a stay would improve public safety and national security, provide humanitarian relief to the family members of citizens and lawful permanent residents, and increase tax revenue for state and local governments. To the contrary, however, and only by way of example, on March 16, 2015, the Attorney General, in opposing a motion to stay removal in an unrelated action, argued to this very panel that “granting a stay of removal . . . would impede the government’s interest in expeditiously . . . controlling immigration into the United States.” Presumably, by referring to “the government’s interest,” the United States is referring to “the public interest.”

In other words, in a recent case, the federal government took the position that they wanted to remove someone from the country, and the court should not issue a stay of that removal because, hey, we have to control immigration. But in the topsy-turvy world of defending amnesty, where the Justice Department is forced by politics to defend a Presidential position that runs exactly counter to enforcing immigration laws, the government says the exact opposite: you need to let us keep people here even if maybe they are illegal, because of all the wonderful benefits we receive from their presence in the country.

The fact that both these arguments were made to the same panel of judges is just a bonus.

It was subtle, but the decision yesterday amounted to the judges calling B.S. on Obama’s lies.

50 Responses to “Federal Judges Suggest Obama Is Disingenuous in DAPA Amnesty Case”

  1. And just think this year’s “immigration season” is almost ready to kick-off. Obama has to find another phony justification to rein in Border Patrol agents. I must be slow because for the life of me I fail to understand how not enforcing the current law is enforcing the law.

    in_awe (7c859a)

  2. Patterico – Didn’t I also read recently through the results of a FOIA request or something that DHS does not even track or categorize cases by whether prosecutorial discretion was utilized so that the whole premise on which the Executive Order is based is a fiction from the start.

    daleyrocks (bf33e9)

  3. I was hoping the Supremes would take this case, if only to read Scalia’s opinion, or at least hear him ask the Solicitor General how one discretions someone a green card.

    Kevin M (25bbee)

  4. Under Barack Obama’s leadership the federal government consistently acts in opposition to the interests of the nation and it’s citizens. His policies and practices undermine protections which were designed by the Founders to guarantee government of, by, and for the people.

    He is the enemy of freedom and the agent of our destruction.

    ropelight (c59fd5)

  5. Judges read the election returns, as has been said. When a President has the people behind him, he is likely to get courts to give him the benefit of the doubt. But when a President is on the ropes, he shouldn’t look to the courts to save him. Bush had a lot better luck on war powers in 2003 than 2007.

    Kevin M (25bbee)

  6. Is there any reason to believe the Obama Administration is obeying the injunction? The Administration’s conduct in this case suggests it’s willing to deceive the courts about DACA and DAPA, and also makes me wonder if it has the abiliy to deport criminal aliens or even knows what it’s immigration bureaucracy is doing.

    DRJ (e80d46)

  7. “The Court has made its decision. Now let them enforce it.”

    Another Democrat president.

    Mike K (4acf73)

  8. DRJ – The link contained in your comment #6 reminds me the document I was referring to in #2 was the DHS Inspector General’s report which stated DHS does not track data on deferrals utilizing prosecutorial discretion.

    daleyrocks (bf33e9)

  9. It seems like Obama thinks he can make up immigration rules, daleyrocks.

    DRJ (e80d46)

  10. DRJ – I agree completely.

    I think we need to be more focused, however, on saving this country from the ravages of climate change than immigration. After all, our first Jewish president just told the graduating class of the Coast Guard Academy that climate change is creating a whole new ocean.

    daleyrocks (bf33e9)

  11. Heh. Maybe Obama could start by proposing a pipeline to send Texas’ extra water to drought-ravaged California, but we know what he thinks about pipelines.

    DRJ (e80d46)

  12. If we form a bucket chain from the new ocean to Death Valley we could lower the oceans, get water vapor into the air to break the drought, and harvest sea salt to finance it all. Those old enough to remember realize we need to get Coke to sponsor it and get the world to sing along.
    I am sure somebody could take this as an opportunity to allow additional immigration.

    But seriously, it seems that a lot of harsh language is used at times disparaging common sense, I think we need more Joe Wilson-style commentary. At times a little righteous indignation would be called for. Don’t judges sometimes say,”Get the h*** out of my courtroom before I throw you straight to jail for malicious contempt.”

    I bet nk or JD would do that when necessary. Can we start a petition to get at least one of them to the DC circuit, on fast track to the SCOTUS.

    MD in Philly (f9371b)

  13. the judges who wrote this decision are obviously racists who should be removed from the bench forthwith.

    redc1c4 (b340a6)

  14. Not to nitpick, daley, but…

    …our first gay Jewish president just told the graduating class of the Coast Guard Academy that …

    …try to keep up.

    Steve57 (4f6474)

  15. “Heh. Maybe Obama could start by proposing a pipeline to send Texas’ extra water to drought-ravaged California, but we know what he thinks about pipelines.”

    DRJ – Maybe we could use the high speed intercontinental rail road instead?

    daleyrocks (bf33e9)

  16. i believe this would be an intracontinental railroad Mr. daley

    happyfeet (a037ad)

  17. Transcontinental railroad, which was still considered a wonderful accomplishment in my grade school days.

    DRJ (e80d46)

  18. Shhh, Mr. feets. The smartest man in the room thinks the US built an intercontinental railroad back in the 1800s.

    Don’t spoil it for him.

    Steve57 (4f6474)

  19. Now it’s just another imperialistic example of so-called American exceptionalism.

    DRJ (e80d46)

  20. yes yes DRJ

    transcontinental railroad

    America is having a tranny moment

    happyfeet (a037ad)

  21. Obama has vocabulary issues, happyfeet. I guess we all do sometimes but I wonder if Obama is humble enough to realize he’s human, too.

    DRJ (e80d46)


    Now, we used to have the best infrastructure in the world here in America. We’re the country that built the Intercontinental Railroad, the Interstate Highway System. We built the Hoover Dam. We built the Grand Central Station.

    So how can we now sit back and let China build the best railroads? And let Europe build the best highways? And have Singapore build a nicer airport?

    Steve57 (4f6474)

  23. DRJ @21, I beg to differ. After reading the transcript of his Cairo speech it was obvious to me at least that his problems surrounding his failurea to grasp history, science, and reality in general were more than vocabulary deep.

    Steve57 (4f6474)

  24. failurea = failures

    At least I’m man enough to admit that sometimes instead of hitting the “s” key I hit the “a” key.

    Which are right next to each other, I’d like to add.

    But it gives me the opportunity to point out again that if Obama was only guilty of typos or vocabulary errors I wouldn’t be criticizing him.

    Steve57 (4f6474)

  25. i like how the droughts in Texas is that were to be the new normal were proof of global warming, and now the flooding is proof of same.

    JD (18bb9f)

  26. This Court didn’t have to get into the perfidy of the Obama actions, the trial Court has clarified that they were outright lying.

    JD (18bb9f)

  27. “i believe this would be an intracontinental railroad Mr. daley”

    Mr. Feets – I believe you would be wrong according to our first Jewish president. See the comment of Mr. Steve57 above.

    daleyrocks (bf33e9)

  28. failurea

    Actually upon reflection maybe it wasn’t so much a typo as an epiphany.

    Barack Obama and his minions have the world’s worst case of failurhea ever in recorded or unrecorded history.

    Steve57 (4f6474)

  29. we should put the new Singapore airport on a postage stamp if it’s so awesome

    happyfeet (a037ad)

  30. Presumably, by referring to “the government’s interest,” the United States is referring to “the public interest.”

    I’m with the panel’s majority on their ruling, but this has to be the singularly most naive statement ever written by intelligent and educated people. The interests of the government haven’t squared with the interests of the public since Calvin Coolidge’s days. The government’s interest is in making sure that the government is taken care of. The hell with the little guy.

    JVW (887036)

  31. i like how the droughts in Texas is that were to be the new normal were proof of global warming, and now the flooding is proof of same.

    Global Warming: Is there anything it can’t do?

    JVW (887036)

  32. “Global Warming: Is there anything it can’t do?”

    JVW – It’s almost as popular as gay marriage!

    daleyrocks (bf33e9)

  33. JVW@30, if you think about it you’ll see that the majority is subtly suggesting they agree with you.

    Presumably, by referring to “the government’s interest,” the United States is referring to “the public interest.”

    If it were in fact presumably true there would be no write that sentence into their ruling. By writing that sentence they are letting people know it is no longer presumably true.

    Certain words only need to be written because nobody or almost nobody believes them anymore. Which is why the majority on the 5th Circuit wrote those words into their opinion. If it were in fact presumably true that the “government interest” and the “public interest” were the same people would in fact presume it. They wouldn’t need to be lectured about it

    Steve57 (4f6474)

  34. the continuing criminal conspiracy/enterprise known as the Obama Administration.

    Colonel Haiku (2601c0)

  35. I’m trying to think of a reason for the Administration to appeal this injunction. It will probably lose in the Fifth Circuit and it could take until 2016 to appeal in the Supreme Court, which means Obama’s immigration plans will be on hold for the rest of his term.

    What if he’s willing to bluff it out? He has already claimed the trial and appellate courts are factually and legally wrong, so the next step may be to treat his executive order as a signing statement that explains why he is ignoring the courts’ injunction pending the appeal on the merits. The courts can’t stop Obama if he ignores their orders, and I don’t think Congress has the stomach to impeach him.

    DRJ (e80d46)

  36. Why would he put anything in writing, DRJ? He could just defy the court silently.

    Steve57 (4f6474)

  37. DRJ – we already know he sees the law in general, and immigration law in particular as something he gets to write according to his whims.

    JD (a8d68a)

  38. What a Constitutional crisis that would create, and the spineless GOP Congressional leaders would do nothing to stop it.

    DRJ (e80d46)

  39. I was referring to the existing immigration statements, Steve57, but he could also issue something along the lines of the Fifth Circuit dissent. Basically, he could say “This is a political question so butt out” and I’m not sure what the courts could do about it.

    DRJ (e80d46)

  40. In other words, Mike K #7 is spot on.

    DRJ (e80d46)

  41. DRJ @39, I’m not sure what existing statements exist. I believe there is no E.O. concerning what’s called DAPA. And I don’t think he can tell the courts to butt out because it’s a political issue because that would destroy the argument the states don’t have standing. It would certainly destroy his argument that what he’s doing is so routine and purely administrative that he doesn’t need to comply with notice and comment requirements of the Administrative Procedures Act.

    Steve57 (4f6474)

  42. The courts can’t stop Obama if he ignores their orders, and I don’t think Congress has the stomach to impeach him.

    The big question would be what are Senate Democrats going to do about it. Republicans can try one more time to defund this illegal order by withholding money from the various departments and we could be neigh close to another shutdown. Could the GOP gain some traction by claiming to be taking a principled stand against executive overreach? Would Democrat Senators like Donnelly, Heinrich, Heitkamp, Kaine, King, Manchin, McCaskill, Nelson, Shaheen, Tester, Udall, and Warner start to think that Obama has gone too far for their constituents and demand that he abandon his immigration agenda? Naturally they would never vote for impeachment, but what if five or six of those Dems announced that they would support efforts to tie the White House up in knots until Obama capitulated. I know Obama doesn’t seem to care about anyone outside his own immediate orbit, but I think even he would understand that he doesn’t want to spend the last 18 months of his Presidency turning Senate allies into enemies. But perhaps I am underestimating how truly narcissistic Dear Leader really is.

    JVW (887036)

  43. Steve57,

    Here is the announcement by the White House. The critical portion sis under the sub heading “streamlining the immigration court process” by the DOJ. I don’t have time to find the DOJ stuff now.

    DRJ (e80d46)

  44. I can see no limitation to what he can do and get away with.

    If I tried to tell the CG Academy grads that global warming was the biggest national security threat they would face, there would be a moment of dumbfounded silence, then some snickers, then out loud chuckles, then people rolling on the ground in guffaws.

    But the one does it, and the majority nod hypnotically in agreement, and a few who see that the emperor has no clothes look to one another in silence with a sour look on their faces.

    In the LOTR it was Theoden King who was bewitched by Wormtongue, and all of the people could see it but do nothing about it. Here, it is the populace that has been bewitched.

    MD in Philly (f9371b)

  45. People who are trying to decide the politically wise thing to do are of no use to anyone at this juncture. I do not mean be politically stupid for the sake of being politically stupid,
    but it will take people of character and courage to do the right thing, and if that isn’t miracle enough to find people like that today, it will take another miracle for enough people to listen.

    I’m afraid a scene with him surrounded by those columns again, saying he is the one we’ve all been waiting for, and seeing the ground open up and swallow him is what it will take for the majority to wake from their trance.

    MD in Philly (f9371b)

  46. well there is hope, that Judge Hanen, who they tried to keep off for a decade, was the one who called him out, David vs. Goliath, emperor’s new clothes, choose your metaphor,

    narciso (ee1f88)

  47. All praise and thanks to him and her to whom it is due for doing what they can,

    but he’ll laugh and do what he wants until someone stops him,

    didn’t he ignore what the judges told him about oil drilling in the Gulf, for starters?

    MD in Philly (f9371b)

  48. yes yes he did

    he hurt so many families

    happyfeet (831175)

  49. The title of this post sounds like the Judges are being generous, rather than saying “enough with the lies”

    steveg (fed1c9)

  50. just like you say the honorable gentleman, when we’re talking about low down lizards like Harry Reid, one couches the expressions in euphemisms,

    narciso (ee1f88)

Powered by WordPress.

Page loaded in: 0.3312 secs.