Latest legal blow could put final decision close to the end of his presidency
A series of setbacks and delays in the key legal challenge to President Barack Obama’s executive actions on immigration could irreparably damage his legacy on the issue, even if the Supreme Court ultimately upholds his authority to act.
The latest blow came Tuesday as a three-judge appeals court panel voted, 2-1, to deny the administration’s request to proceed with Obama’s plan to grant quasi-legal status and work permits to millions more illegal immigrants while litigation over those actions plays out.
Two and a half months after the Justice Department sought an emergency stay of a judge’s order blocking Obama’s moves, the 5th Circuit U.S. Court of Appeals turned down the request.
If the administration can’t get the Supreme Court to act promptly to lift the injunction or chooses not to try, the White House could find Obama’s long-promised immigration actions on hold until the Supreme Court rules definitively on the legal questions at stake — a ruling that likely wouldn’t come until next June.
By then, the presidential campaign will be in full swing and Obama’s final term will be winding down, prompting some illegal immigrants to consider holding off applying until the dust clears.
“I think the big question there comes back to, depending on how close we are to the election, will people find confidence enough to come forward and apply,” said Marielena Hincapié of the National Immigration Law Center. “The longer this stuff — the delay — basically, the harder the impact will be on our communities.”
One former top immigration official says that regardless of the eventual outcome of the litigation, the delay is likely to undermine the willingness of immigrants to take the much-vaunted step out of the shadows.
“I think the longer the program languishes the more uncertainty is going to build. That’s going to create a reluctance for people to come forward and participate,” said Paul Virtue, a former immigration service chief counsel now with law firm Mayer Brown.
Such a showdown could also vault the immigration issue into higher prominence in next year’s presidential election. So far, Democratic presidential candidate Hillary Clinton has said she would try to expand Obama’s executive actions, while most Republican hopefuls have vowed to rescind them.
One worry for some immigrants is that the personal information and biometrics they provide when applying for the Obama programs could be used by a future administration to track down foreigners for deportation.
“People have to look at a prospective change in administration and ask, ‘Am I registering to be deported?’” Virtue said.
However, some immigrant advocates think most of those eligible for the programs will apply despite the uncertainty because the benefits of quasi-legal status and a work permit are huge.
“A delay here is not good, but I still think people will apply — people will still want to have some sort of paper,” said David Leopold, former president of the American Immigration Lawyers Association.
Tuesday’s ruling came in a legal challenge by 26 states to a pair of executive actions Obama announced in November: an expansion of a program for illegal immigrants who entered the country as children, and the creation of a new program for illegal immigrant who are parents of U.S. citizens.
U.S. District Court Judge Andrew Hanen imposed an injunction on Obama’s plan earlier this year after holding that the administration failed to announce the new policies as a formal government rule requiring official public notice and an opportunity for public comment.
Writing for the majority Tuesday, Judge Jerry Smith said the Justice Department had not met the legal standards required to block the lower court ruling.
In an opinion joined by Judge Jennifer Elrod, Smith sounded sympathetic to claims that Obama’s actions exceeded the authority given to the president and the executive branch by Congress.
“Although the Secretary [of Homeland Security] is given discretion to make immigration decisions based on humanitarian concerns, that discretion is authorized for particular family members and forms of relief,” Smith wrote. “Congress has developed an intricate process for unlawfully present aliens to reside lawfully … in the United States on account of their child’s citizenship. … Against that background, we would expect to find an explicit delegation of authority to implement [Deferred Action for Parents of Americans] — a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits — but no such provision exists.”
Smith also said the federal government had failed to show that Hanen erred when he concluded that the new program amounted to a formal rule that should have been put through formal notice-and-comment procedures. The Obama administration claims that the policy involves the exercise of case-by-case discretion, but the appeals court found the evidence on that point to be conflicting and said Hanen’s conclusion wasn’t “clearly erroneous.”
Judge Stephen Higginson, the sole Democratic appointee on the 5th Circuit panel, dissented from Tuesday’s ruling. He portrayed Obama’s moves not as favors for certain groups of illegal immigrants, but a logical effort to prioritize deportation efforts.
”I would say [the Department of Homeland Security] is adhering to law, not derogating from it,” Higginson wrote.
“It is undisputed that the Executive presently is deporting a total number of immigrants at a faster rate than any administration before, ever; that the Executive is and should allocate limited resources to deport violent and dangerous immigrants, ahead of citizen-children’s parents who self-report to DHS acknowledging their illegal presence; and finally, that even categories of persons, like immigrants cooperating with the government in criminal cases or who contribute to our Armed Forces, historically receive deferrals,” the 5th Circuit judge added.
Higginson said he believes the lawsuit brought by the states is “non-justiciable,” meaning it is in a category of disputes the courts refrain from ruling on because doing so would impinge on the executive branch’s traditional authority.
The Obama administration can now turn to the Supreme Court for a green light to proceed with the program, or Justice Department officials could wait until the 5th Circuit rules on the merits of Hanen’s legal rationale for the injunction he entered in February. A different panel of the appeals court is expected to hear arguments on those issues in early July.
A White House official had no direct comment on the possibility of Supreme Court action but said the Justice Department will consider what steps to take as the litigation goes forward.
White House spokeswoman Brandi Hoffine said the ruling Smith and Elrod issued Tuesday was off base.
‘Two judges of the Fifth Circuit chose to misinterpret the facts and the law in denying the government’s request for a stay. As the powerful dissent from Judge Higginson recognizes, President Obama’s immigration executive actions are fully consistent with the law,” Hoffine said.
Hoffine called Obama’s immigration moves “squarely within the bounds of his authority, and they are the right thing to do for the country.”
Early reaction to the 5th Circuit ruling came in a tweet from Republican Texas Gov. Greg Abbott, who as Texas attorney general launched the charge for the states attacking Obama’s moves.
“Texas just won the Executive Amnesty case at the 5th Circuit Court of Appeals,” wrote Abbott, using a shorthand for Texas v. United States. “The constitution wins.”
House Speaker John Boehner (R-Ohio) painted the decision as a defeat for a lawless president.
“The president said 22 times he did not have the authority to take the very action on immigration he eventually did, and the courts have agreed once again,” Boehner said in a statement. “House Republicans are leading the fight to rein in President Obama’s executive overreach and uphold our Constitution, and we will continue to follow this case closely.”
However, immigrant-rights activists urged Obama to act swiftly to get the Supreme Court’s blessing to move forward with the programs.
Hinacapié encouraged the administration to move “quickly and aggressively” by “taking the matter to the Supreme Court as quickly as possible. “
“The longer this justice is delayed, the harder the impact will be on our communities,” she said in a conference call with reporters. “We know that this decision is on the wrong side of the law. We know that we are on the right side of history.”
The three 5th Circuit judges deciding the case were randomly selected. Smith was appointed by President Ronald Reagan, Elrod by President George W. Bush and Higginson by Obama.
Hanen ruled in February that Obama’s November actions violated federal law because they were not properly announced and opened for public comment before being put into effect. The judge did not rule explicitly on questions many Republicans in Congress have raised about the president’s legal authority to carry out his moves.
Seung Min Kim contributed to this report.