For the second time in as many months, a federal court has upheld the stoppage of a key portion of President Obama’s November 2014 executive order reforming U.S. immigration policy. A split 3-judge panel from the 5th Circuit Court of Appeals upheld Texas Federal Judge, Andrew Hanen’s February injunction of the executive order after 26 states sued the federal government claiming that the policy is unconstitutional. The portion of the executive order being disputed would defer the deportation of an estimated 4 million illegal immigrants and grant them work permits. In the 68-page opinion, Jude Jerry E. Smith, joined by Judge Jennifer Elrod wrote that states like Texas would incur significant costs by issuing driver’s licenses as well by making the immigrants eligible for state and federal benefits. The majority opinion also contained an ominous warning regarding future appeals, writing, “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay.” The court also rejected the administration’s attempt to make the injunction valid only for the states that are involved in the lawsuit.
The administration reacted strongly to the most recent ruling. Obama spokesperson Brandi Hoffine said in a statement, “Today, two judges of the Fifth Circuit chose to misinterpret the facts and the law in denying the government’s request for a stay,” calling the executive order “squarely within the bounds of his authority.” The administration has argued that there is only enough funding to deport roughly 400,000 people annually and by implementing the program, the administration is prioritizing its resources to focus on illegal immigrant criminal activity and terrorist threats. Dissenting Judge, Stephen Higginson concurred, writing that deferred action and prioritization “must be decided, presently is being decided, and always has been decided, by the federal political branches.” The immigration program would have deferred the deportation of undocumented parents of U.S. citizens with no felonies or repeat misdemeanors who have lived in the country for more than five years. The program was an addition to 2012’s DREAM Act, offering similar protections for children of illegal immigrants in the U.S. That program is still ongoing and not affected by the recent court action.
Judge Hanen has yet to announce when he will make his ruling on the constitutionality of the executive order, although he has been outspoken in his criticism of Obama’s immigration policy. Texas Attorney General, Ken Paxton, who is leading the lawsuit, said “The president’s attempt to do this by himself, without a law passed by Congress and without any input from the states, is a remarkable violation of the U.S. Constitution,” while Judge Higginson wrote in his dissent that the administration is “adhering to the law, not derogating from it.” Although it is possible that the administration can appeal the ruling to a full panel within the 5th Circuit, given the recent decisions in the region, it is more likely that they continue the case up the ladder to the Supreme Court. Regardless of the action on the injunction or the ruling on the case itself, it is now probable that the program will not begin before the president leaves office in January 2017, if ever.
The language within the recent rulings and the reaction of other prominent figures highlight the increasingly blurred line between the political and legal aspects of this case. The 26 states that are suing are largely conservative and Republican-dominated. The states chose to pursue the lawsuit in the 5th Circuit, with Texas as the lead plaintiff due to the Circuit’s reputation as being the most conservative in the nation. Judge Smith was appointed by President Reagan in 1987, and has fought with the president over health care in 2012 and Judge Elrod was nominated by President George W. Bush in 2007, while Judge Higginson is a 2011 Obama appointee. A federal judge in Washington dismissed a lawsuit regarding the policy in December brought forth by the controversial Maricopa County Sheriff, Joe Arpaio, with the judge calling the plaintiff’s arguments “political, not legal.” Also, the Fifth Circuit dismissed another lawsuit on April 7th brought forth by federal immigration agents, with administration lawyers using the same legal justification as the recent lawsuit. 14 blue states and the District of Columbia wrote an amicus brief supporting the program and defending the economic benefits that immigrants provide. The line between legal and political will likely continue to become blurrier, as the judicial delay will mean the issue will become a major component of the 2016 presidential race.
New York Times – Julia Preston
Wall Street Journal – Nathan Koppel
Washington Post – David Nakamura