When President Obama unveiled his plan to help as many as 5 million immigrants “come out of the shadows,” the White House insisted it was not rewriting law but merely exercising “prosecutorial discretion” to decide who should be deported first.
That argument ran off the rails in the U.S. 5th Circuit Court of Appeals this week when conservative judges sided with Texas and upheld an order blocking Obama's plan from taking effect.
Despite protests from the president's lawyers, judges portrayed Obama's latest executive action on illegal immigration as a major change in the law and one not approved by Congress.
It “would extend lawful presence to millions of illegal aliens on a class-wide basis,” said Judge Jerry Smith, and “affirmatively confer” a “host of federal and state benefits,” including a Social Security pension and Medicare hospital coverage.
The decision sets the stage for another highly partisan battle in the Supreme Court, with Texas and 25 other Republican-led states on one side and Obama and the Democratic-led states, including California, on the other.
The president's lawyers may face an uphill fight in the high court, where some justices have voiced skepticism over Obama's bold use of executive authority. Twice, the court has upheld Obama's healthcare law against conservative challenges, but in those cases, Chief Justice John G. Roberts Jr. cast a key vote to preserve a liberal law that had won approval in Congress.
In the immigration area, by contrast, Obama has no new law to defend. A bipartisan reform measure died when House Republicans refused to take up a Senate bill that had won passage on a 68-32 vote. Only then did a frustrated Obama announce his executive action to “help make our immigration system more fair and just.”
Going forward, the key question will be: Is the president enforcing the immigration laws or changing them?
In public statements and legal briefs, Obama's aides describe their immigration initiatives as limited and temporary. No one is offered “rights” or a “path to citizenship.” They speak of “case-by-case” determinations involving individuals, not changes that affect whole categories of people. They describe their policy with the phrase “deferred action,” a term used in immigration law to mean the government had decided to put off the deportation of someone who could be sent home.
It’s a power Obama and past presidents have used before. In 2012, the Department of Homeland Security announced Deferred Action for Childhood Arrivals, or DACA, to offer a temporary lawful status to as many as 1.2 million people who were brought to this country illegally as children. This policy did not face a strong challenge in court, in part because these immigrants could not be accused of deliberately violating the law when they crossed the border.
But last year, when the president and Homeland Security Secretary Jeh Johnson announced the much larger Deferred Action for Parents of Americans, or DAPA, lawyers for Texas and 25 other states filed a suit to block the program. The president's plan also included an expansion of DACA that could affect several hundred thousand additional immigrants.
Experts in immigration law knew the administration was skating near the edge when it announced changes that would affect as many as 5 million immigrants who were living in the U.S. illegally. On the one hand, they said, the law had always given the executive branch the authority to decide whom to deport and to set priorities, such as focusing on those with criminal records.
But as Judge Smith saw it, the DAPA order went far beyond that by saying the government would not seek to deport immigrants who had lived with their American children for many years in the United States. His opinion was joined by Judge Jennifer Walker Elrod, also a Republican appointee.
Judge Carolyn Dineen King, a Democratic appointee, dissented and described the new policy in a quite different way. “DAPA is merely a general statement of policy,” she said. It does not guarantee anything to anyone, she said.
Solicitor Gen. Donald Verrilli Jr., Obama's top courtroom lawyer, is expected to file an appeal in the Supreme Court soon and urge the justices to rule on the case by June.
Early this year, Obama's lawyers hoped to get the Texas case thrown out on the grounds that the state had suffered no injury and therefore had no standing to sue. But U.S. District Judge Andrew S. Hanen in Brownsville, Texas, said that the state could be forced to pay hundreds of thousands of dollars to help cover the cost of driver's licenses for nearly half a million immigrants in Texas, and that was a sufficient injury. He then issued a national order blocking Obama's plan from going into effect, an aggressive use of his judicial power.
The 5th Circuit panel affirmed his decision this week, and it did so by relying on a liberal precedent from an environmental case.
A decade ago, environmentalists were upset that the George W. Bush administration was not taking action against global warming, and a coalition of “blue states” led by Massachusetts and California sued, alleging a failure to fully enforce the Clean Air Act. The key question was whether these states could claim they had an injury that gave them standing.
In Massachusetts vs. Environmental Protection Agency, the court by a 5-4 vote ruled for the blue states and said they had standing because rising seas could take away parts of their beachfronts. Chief Justice Roberts sharply dissented.
In this week's opinion, Smith repeatedly cited the Massachusetts case as confirming that Texas had standing to challenge the Obama administration for not enforcing the laws against illegal immigration.
Immigration law scholars who have supported the administration believe Obama's executive actions will be upheld in the end. The 5th Circuit ruling “flies in the face of several Supreme Court precedents granting the executive branch broad, almost unlimited, power on immigration issues,” Cornell law professor Stephen Yale-Loehr said.
Three years ago, the high court ruled for the Obama administration and against Arizona in a federal-state battle over immigration. In a 5-3 decision, the court said the state was not free to use its police to make immigration arrests. Justice Anthony M. Kennedy explained that U.S. law gives federal officials “broad discretion” in handling deportations, an argument Obama’s lawyers are sure to repeat in their appeal to the high court.
Verrilli's first task, however, will be to win a quick hearing. If the justices vote to take up the case by January, it will be decided by the summer, which could give Obama's team time to put the policy into effect. But a delay could push the case to the fall, which could leave the 5th Circuit's order in place until the president leaves office.
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