National Review Online continues to hype and misrepresent a dubious lawsuit against the current deferred action policy for certain undocumented immigrants who entered the country as children, trying to insert it into the Congressional debate on immigration reform.

NRO has repeatedly and uncritically promoted this legal challenge underwritten by the nativist "immigration-restriction" group NumbersUSA, filed in federal court last summer by the anti-immigrant movement's attorney of choice and Arizona SB 1070 author, Kris Kobach (also an NRO contributor).

On behalf of 10 disgruntled Immigration and Customs Enforcement (ICE) agents, the lawsuit claims that the deferred action policy implemented to formalize prosecutorial discretion for qualifying undocumented students and veterans who came to the U.S. as children - also referred to as “DREAMers” - requires them to violate immigration law. From NRO, which calls out "most Republicans [who] have expressed little interest in the ICE agents' lawsuit":

U.S. District Judge Reed O'Connor has already indicated that the ICE agents “are likely to succeed on the merits of their claim.” If that proves true, it would mean that the agents' request for a temporary injunction would be granted, and the policy ultimately struck down, barring a successful appeal. Judge O'Connor's ruling is likely come in the next week or two, as the Senate debates and considers amendments to the immigration-reform bill. “It could definitely affect things in Congress,” says Kris Kobach, the attorney representing the ICE agents in the case (and a contributor to National Review). “If Congress doesn't take notice of what's going on in this case, and the shocking facts that have been revealed, then Congress is not looking at the full picture.”  

Kobach, who opposes the Gang of Eight bill, says such a ruling would significantly undermine proponents' claims with respect to border security and law enforcement. “All we really have on the law-enforcement side, with the bill in the Senate, is the Obama administration's promise to enforce the law,” Kobach says. “Well, they've already shattered that promise, as demonstrated by this case. They're ordering ICE agents to break the law, which is pretty extraordinary. They're not engaging in any serious law enforcement.”

[...]

[The Obama] administration has demonstrated a casual disregard for the rule of law. Even if the DREAM Act is good policy -- and even a number of Republicans think it is -- certainly the fact that the president lacks the legal authority to implement it by executive fiat is a “good reason” to stop him from doing so.

If for no other reason than the fact that the anti-immigrant activism practiced by NumbersUSA and Kobach has become toxic for a Republican Party trying to fix its overwhelming unpopularity with voters of color, the GOP's noticeable aversion to this challenge is unsurprising. However, in seeking to justify the automatic deportation of these non-criminal undocumented immigrants, NRO also fails to recognize the other reason Kobach is not getting much support.

Contrary to NRO's presentation, the lawsuit is seriously struggling.

Although NRO quotes the rote language that accompanies preliminary injunctions granted for claims that pass the minimum legal threshold for a likelihood of success, it fails to explain the significance of the recent opinion that declined to grant the injunction. Similar to his previous order (unmentioned by NRO), Judge O'Connor is still unsure if this case belongs in court.

As predicted by multiple legal experts, the previous order threw out most of the ICE agents' claims because government employees generally lack standing to overturn their superiors' policy decisions in court. Intra-governmental disputes such as this one are considered non-justiciable for the common sense reason that if employees could pursue their grievances with agency heads in this fashion, decision-making could grind to a halt every time a subordinate was convinced he knew better than the boss.

In the most recent order, Judge O'Connor did raise the prospect that if he decides against precedent that the case belongs in federal court, he might grant the request to temporarily enjoin the deferred action policy on the grounds that 1996 immigration law amendments appear to require ICE agents to at least begin removal proceedings against DREAMers they encounter. But in a Yale Law Journal article, immigration law expert David A. Martin strenuously disputed this proposed statutory interpretation, based on his “extensive involvement as General Counsel of the Immigration and Naturalization Service [the previous incarnation of ICE] in the 1996 consideration of legislative amendments and administrative implementation.”

Now a professor at the University of Virginia School of Law, Martin returned to immigration enforcement at the Department of Homeland Security (DHS) in 2009 through 2010, where he again saw firsthand how the federal government exercises its ample and frequent prosecutorial discretion. Based on both his knowledge of the legislative history and actual implementation of the 1996 amendments, Martin argues that Congress did not intend to reverse standard immigration practice by prohibiting discretion in favor of automatic deportation. Such an erroneous reading of the statute would make illegal much of the long-standing discretion ICE agents have always exercised for all immigrant groups, not just DREAMers. As explained by Martin, "[n]o sensible law enforcement agency operates the way Kobach advocates."

Indeed, the judge himself admitted that if he ultimately did hold - contrary to alleged congressional intent - that the statute automatically required low-level ICE agents to immediately start deportation proceedings, this is a formality that cannot actually halt the deferred action policy. After the removal process was started under such a court order, an ICE supervisor could exercise his prosecutorial discretion to stop automatic deportation at later stages, as envisioned by the deferred action guidelines. From Judge O'Connor's most recent order:

[T]he Court finds that DHS does not have discretion to refuse to initiate removal proceedings[.] However, DHS's ability to exercise its discretion at later stages in the removal process by, for example, cancelling the Notice to Appear or moving to dismiss the removal proceedings, is not at issue in the present case, and nothing in this Order limits DHS's discretion at later stages of the removal process[.] Through the exercise of discretion at these later stages in the removal proceedings, DHS appears capable of prioritizing its removal objectives and conserving its limited resources.

In sum, with every order of the judge, this lawsuit becomes weaker and less relevant to the real world of immigration policy. For example, under the strained statutory interpretation being considered by the judge, immigration experts point out that if it survives appeal it still might not affect the substantial number of DREAMers who arrived in the county through official ports of entry and then overstayed.

More importantly, however, is the judge's concurrence with immigration experts that if what's left of the lawsuit prevails, it still won't neccesarily lead to the deportation of DREAMers. As explained by the American Immigration Council, “even by 'winning' the lawsuit, the only thing Kobach would accomplish would be allowing ICE agents to issue pieces of paper of little practical significance.”

NRO may be successfully giving its contributor's legal challenge attention it is not receiving elsewhere, but it is a peculiar way to register its anti-immigrant bona fides. NRO can surely find easier ways to express its opposition to both immigration reform and undocumented students and veterans who crossed our borders as children than continuing to mislead about this anti-DREAMer lawsuit.