State and federal lawyers on opposite sides of the immigration divide are set to square off Friday in a federal appeals court over the merits of President Obama's executive action seeking to shield up to 5 million people from deportation.
Immigrant advocates have planned protests outside the federal courthouse in New Orleans, where hundreds are expected to rally in support of the programs, holding a vigil and marching through downtown.
The court battle began in December, when Texas officials, joined by 25 other states, filed suit against the programs before they were launched. In February, an outspoken conservative federal judge in Texas, Andrew S. Hanen, issued a preliminary injunction preventing the administration from starting the programs.
In May, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans refused the administration’s request to lift Hanen's stay after hearing oral arguments from both sides.
Now the two sides will meet at 9 a.m. Friday for oral arguments about the programs, known as Deferred Action for Parents of Americans and an extension of Deferred Action for Childhood Arrivals.
“We are hoping they move faster. Every day they delay is a day 5 million people cannot apply for these programs,” said Nora Preciado, a litigator with the Los Angeles-based National Immigration Law Center who attended the last oral arguments and plans to be at the court again Friday.
But opponents of Obama’s executive action had reason to be encouraged, particularly by the panel of judges randomly selected to hear the case: two conservatives and a moderate.
“The question is really who decides what U.S. immigration policy is. Congress has been deciding. Now, for the first time, we have a different situation where the president says, ‘No, I decide,' ” said Jan Ting, a professor at Temple University’s Beasley School of Law who consulted with Texas officials preparing their case.
The repeat selection of two conservative judges surprised some legal observers, and has led many to expect that the case will be headed to the Supreme Court on appeal, possibly at the height of the 2016 presidential campaign.
“The administration has been stopped in its tracks,” Ting said of the stay, adding that as for Friday’s hearing, “It almost doesn’t matter how this turns out, because whoever loses is going to appeal to the Supreme Court. It’s liable to last until almost the end of President Obama’s term.”
The Justice Department has argued that the states lack legal standing to object, but the judges set to hear the case Friday have already signaled their doubts about that argument.
On June 29, the judges ordered both sides to file briefs addressing a new Supreme Court ruling upholding the Arizona Legislature’s right to sue over a referendum that allowed an independent commission to handle redistricting. While the Supreme Court ultimately rejected the Arizona challenge, the majority of justices found the Legislature did have standing to file the case.
In addition to the states’ case Friday, the three-judge panel will consider a related case involving three immigrant mothers from South Texas who are eligible for the executive action, represented by Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund.
Perales, who is known for her work on voting rights, redistricting and anti-immigrant housing laws in Arizona and Texas, has said Judge Hanen's decision was "a temporary setback but is not the end" of the programs. "We expect the decision will likely be overturned on appeal because the judge did not adequately consider the federal government's authority to enforce its priorities in immigration.”
The administration will again be represented by Benjamin C. Mizer, acting U.S. attorney general for the Justice Department’s Civil Division and former Ohio solicitor general.
This time Mizer will also be joined by Deputy Assistant U.S. Atty. Gen. Beth S. Brinkmann, former assistant to the solicitor general of the United States from 1993 to 2001.
Arguing on behalf of Texas and the other states that sued to stop Obama’s executive action will be conservative Texas Solicitor General Scott Keller and Assistant Texas Solicitor General Alex Potapov.
Keller and Mizer will each have an hour to speak. Perales will have 20 minutes; Brinkmann and Potapov 10 minutes each.
That doesn’t include questions and comments from the judges, which during oral arguments on the stay proved extensive.
The Fifth Circuit includes 15 judges responsible for cases from Louisiana, Mississippi and Texas, and Friday’s randomly assigned judges will be Jennifer Walker Elrod, Jerry E. Smith and Carolyn Dineen King.
King, 77, is a judicial moderate new to the case; the last panel included Stephen A. Higginson, an Obama appointee who wanted to lift the stay, and dissented.
King graduated from Smith College in 1959, Yale Law School in 1962, then worked in private practice in Houston until she was appointed by Jimmy Carter in 1979. She is married to a fellow Fifth Circuit judge, Thomas Morrow Reavley (also appointed by Carter the same year).
Smith, 68, a conservative, was appointed by Ronald Reagan in 1987. A native of the border city of Del Rio, Texas, he graduated from Yale University and law school and later served as Texas’ special assistant attorney general and as Houston’s city attorney.
Elrod, 48, a native of Port Arthur, Texas, who now lives in Houston, graduated from Baylor University and Harvard Law School, was appointed by George W. Bush in 2007 and is also seen as a staunch conservative.