Obama's Immigration Plan Is Blocked, Setting Stage for SCOTUS Showdown

By Josh Gerstein and Seung Min Kim, Politico

10 November 15

The timing would seem to allow the Supreme Court an opportunity to rule on the issue this term.

federal appeals court has rejected President Barack Obama's effort to move forward with a series of executive actions he announced last year seeking to give quasi-legal status and work permits to millions of undocumented immigrants.

The 2-1 ruling Monday from the New Orleans-based 5th Circuit is a defeat for the Obama administration, but one that may have come just in the nick of time to give the Supreme Court the chance to revive Obama's attempt to make it easier for many immigrants who entered the U.S. illegally to live and work here.

The timing of the appeals court's decision had become of increasing concern to the Obama administration and immigrant rights' groups in recent weeks.

Obama's latest round of executive actions has been on hold since February, and delay in the issuance of the appeals court's ruling was raising doubt about whether the Supreme Court would have an opportunity to resolve the case in time to allow Obama to move forward with the programs before leaving office.

The release of the 5th Circuit decision Monday appears to allow the Supreme Court enough time to take up the dispute this term, if the justices choose to wade into the issue. A favorable Supreme Court ruling would permit the administration to implement the executive actions next summer.

The 5th Circuit agreed in March to hear the appeal on an expedited basis, and the case was argued July 10. The court's website says decisions are normally expected about 60 days after argument. The dissenter on the three-judge panel, Judge Carolyn King, complained that the appeals court's ruling had been unreasonably delayed.

"I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this 'expedited' appeal. There is no justification for that delay," wrote King, an appointee of President Jimmy Carter.

In a statement late Monday, a White House official disputed the appeals court's legal conclusions but did not say when or whether the administration would take the issue to the Supreme Court.

"We strongly disagree with the 5th Circuit’s decision. The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws," said the official, who asked not to be identified. "The Department of Justice and Department of Homeland Security are reviewing the court’s decision as they consider the appropriate next steps for moving forward."

Obama's actions announced last November expanded eligibility for a program the president set up in 2012 to allow immigrants who entered the U.S. illegally as children to get "deferred action" status and be eligible to work legally. The new effort also included a new initiative to grant the same status to illegal immigrants who are the parents of U.S. citizens or green-card holders. Up to 5 million people were estimated to be eligible for the revised Deferred Action for Childhood Arrivals and new Deferred Action for Parents of Americans programs, although it was unknown how many would decide to apply.

When Obama announced the new moves about a year ago, he said he was acting because Congress failed to pass comprehensive immigration reform legislation. But the decisions drew sharp criticism from Republican lawmakers, who argued he was overstepping his powers under the Constitution. Congressional Republicans had seized on multiple statements Obama himself made that indicated the president did not believe he had the legal authority to act on his own to halt deportations and grant work permits.

“Today’s decision from the federal appeals court is a victory for the Constitution and the American people," said House Judiciary Committee Chairman Bob Goodlatte (R-Va.), whose panel oversees immigration policy, on Monday night. "President Obama’s decision to ignore the limits placed on his power and act unilaterally to rewrite our nation’s immigration laws is an affront to the Constitution."

"This decision contributes to the mounting evidence that the president's executive action on immigration was unlawful and he simply cannot be trusted on this issue," said AshLee Strong, spokeswoman for House Speaker Paul Ryan (R-Wis.)

U.S. District Court Judge Andrew Hanen's February order blocking the actions nationwide was issued on a fairly technical ground: that the changes to immigration procedures were so significant that the administration needed to put them out for official notice and comment before moving forward.

The judge acted on a lawsuit brought by Texas and 25 other states claiming they would be adversely affected by Obama's actions.

The new appeals court opinion praised Hanen's ruling, calling it "impressive and thorough."

The federal government argued that Texas and the other states failed to show the kind of concrete damage needed to bring the suit and that the executive action Obama took did not amount to a policy change that required formal rule-making. Texas said it would incur millions of dollars in costs to issue drivers' licenses to those covered by Obama's orders. However, Judges Jerry Smith and Jennifer Elrod rejected the Obama administration's claims that other financial benefits to the states wiped out those costs for legal purposes.

"The states have alleged an injury, and the [federal] government predicts that the later decisions of DAPA beneficiaries would produce offsetting benefits. Weighing those costs and benefits is precisely the type of 'accounting exercise ...' in which we cannot engage. Texas has shown injury," Smith wrote in a 70-page opinion joined by Elrod. Smith is an appointee of President Ronald Reagan; Elrod was appointed by President George W. Bush.

The 5th Circuit opinion actually goes further than Hanen's, holding not just the administration took shortcuts with procedural rules, but that Obama and Secretary of Homeland Security Jeh Johnson lacked the legal authority for their actions. Smith said the Immigration and Naturalization Act simply doesn't confer the power the administration is claiming.

"Even with 'special deference' to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization," Smith wrote.

Texas Attorney General Ken Paxton, who took over the case when his predecessor, Greg Abbott, was elected governor, hailed the decision.

"Today, the Fifth Circuit asserted that the separation of powers remains the law of the land, and the president must follow the rule of law, just like everybody else,” Paxton said in a statement. “Throughout this process, the Obama administration has aggressively disregarded the constitutional limits on executive power, and Texas, leading a charge of 26 states, has secured an important victory to put a halt to the president’s lawlessness."

Supporters of Obama's actions looked past the 5th Circuit decision to the potential showdown at the U.S. Supreme Court.

"While today's ruling may be disappointing news to those still stuck in the shadows, it is by no means a surprise. The path is finally clear for the Supreme Court to weigh in and confirm the legality of the expanded DACA and DAPA programs," Sen. Robert Menendez (D-N.J.) said.

"Immigrant families & their U.S. citizen children have been waiting anxiously for the 5th Circuit to rule. Now, we call on the [Department of Justice] to seek [certiorari] before the Supreme Court immediately where we are more likely to obtain justice for our communities," said Marielena Hincapié, executive director of the National Immigration Law Center.