According to an article this week in The Hill, "A top House Democrat said Wednesday that President Obama is eying a partial launch of his new deportation-relief programs, despite a federal court's recent decision to block them. Rep. Luis Gutiérrez (D-Ill.) said the administration is weighing whether it has the authority to initiate the executive actions in the states not involved in a lawsuit against them."
The Justice Department has already filed an emergency motion with the U.S. District Court for the Southern District of Texas, asking it to dissolve U.S. District Court Judge Hanen's temporary restraining order (TRO). The motion was a masterpiece of misdirection and hyperbole.
Now, at least according to Rep. Gutiérrez, the administration is giving thought to pretending that if it moves forward in any of the states that are not party to the suit, everything is copacetic. It's fascinating to watch the administration contemplate showing itself to be as contemptuous of the third branch of government — the judiciary — as it has been of the second branch, our Congress.
I say to the president: go for it! Show yourself fully, completely, and nakedly as the imperious autocrat that many of the citizenry have come to believe you are. But what the president may find is that the federal judiciary is not as pusillanimous as our legislators, who have shucked and ducked, but never really taken the chief executive to task by lawsuit despite public avowals that they would do so (leaving that avenue, instead, first to the immigration agents' union and then to 26 states). Nor have they used their lawmaking authority, or even by their power over the federal purse, as is evident by ongoing events related to Department of Homeland Security funding.
Can the executive branch have already forgotten what happened a few short weeks ago in Alabama, when some stalwarts opposed to gay marriage suggested that because a federal judge had only enjoined one county from denying marriage licenses, the other counties should continue with their denials? The judge, apparently furious with the suggestion, called the parties into court and promptly amended his TRO to ensure that the idea of contumacious behavior anywhere in the state would not be tolerated by the court.
Here's the thing about the notion: The administration knows full well that if it starts granting documents in any non-party state to illegal aliens to reside and work in the United States, it will simply act as a magnet to aliens living in the states that are parties to the TRO. And, of course, the federal government doesn't issue documents that limit any alien's ability to live or work where they choose; thus, these newly documented aliens would return to the state where they had been, completely defeating the point of the TRO.
(This phenomenon of venue shopping is not too dissimilar from what has happened in states that have decided to give driver's licenses to illegal aliens. Aliens from surrounding states flock to the issuing state, buy a few phony rent or electric receipts to fraudulently show they are domiciled in that state, get their licenses, and then go back to where they were living and working unlawfully, new licenses in hand.)
One cannot imagine federal judges at either the district or appellate court levels being particularly amused at such a too-clever-by-half measure to circumvent their authority. Some of them might even think it smacks of contempt. And it is. Apparently, contempt for the checks and balances and the tripartite form of government established by our Constitution are the rule of the day under this presidency.