Marcus: Obama foes got judge they wanted in immigration case

Hanen has a remarkable history of blasting the Department of Homeland Security for what he views as its lax approach to immigration enforcement. In his court, where you stand depends, literally, on where he sits — Hansen’s rulings bristle with frustration over the influx of illegal immigrants at the border and what he views as the feckless governmental policies in dealing with them.

The plaintiffs challenging Obama’s plan “got the judge they wanted and they got the ruling they wanted,” Frank Sharry, executive director of America’s Voice, an immigration reform group, told me. As to that ruling, its weakest link is its strained conclusion that Texas, at least, had legal standing to challenge Obama’s actions. Time was, conservatives, and conservative judges, were most reluctant to grant standing, an approach in keeping with their conception of the modest judicial role.

So how did Hanen deal with the federal government’s argument that the states had failed to show the individual injury required to allow them to challenge the executive actions?

It came down — this is not a joke — to driver’s licenses. Texas argued that the expanded class of individuals eligible to remain in the country could apply for licenses, and that the $24 fee for a license did not cover the state’s actual cost. Thus, Hanen found, “the states have shown that the (executive actions) program will directly injure their proprietary interests by creating a new class of individuals that is eligible to apply for state driver’s licenses.”

Seriously, the irreparable harm to Texas is that it spends some money on driver’s licenses? Please, you conservatives who applaud this outcome — not another word about judicial activism.

Republicans’ move

Finally, because the clock is ticking on funding for the Department of Homeland Security, Hanen’s ruling raises the question of whether it offers a face-saving exit to Republicans seeking to avoid a shutdown or instead will further inflame conservatives.

My answer is: both. Those who rail against presidential usurpation of authority will seize on Hanen’s opinion to assert that they cannot appropriate a dime for the Department of Homeland Security. (No matter that Hanen’s opinion only reached the not-so-sexy topic of whether the administration’s actions complied with the, yawn, Administrative Procedure Act, not whether they overstepped constitutional boundaries).

The cannier move would be for Senate Republicans to seize on the case as an escape from their untenable corner: The executive actions are under court review, now we can move on with funding essential government services. Smarter? Yes. More likely? Not in the current poisonously partisan environment.