Demonstrators are fasting this week in front of the U.S. Court of Appeals for the 5th Circuit in New Orleans, protesting a suit brought by 26 states that seeks an end to the temporary protection from deportation granted to immigrants by executive action.
A panel of three appeals court judges heard arguments July 10 but has delayed ruling nearly a month beyond its self-imposed 60-day deadline.
"Each day that the court delays a ruling, it tears apart thousands of families and forces millions more to succumb to uncertainty. There are some who relish playing politics with the courts and people's lives and are putting American values on hold," said Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles.
Here's a look at the case and what’s at stake.
Q: What was the president’s executive action on immigration?
A: In 2012, President Obama announced Deferred Action for Childhood Arrivals, which granted temporary deportation protection to more than half a million young immigrants brought to the U.S. as children. Last year, he attempted to extend DACA and add Deferred Action for Parents of Americans, or DAPA, which would offer three-year work permits to millions of parents of citizens and other legal residents, but not recent arrivals or those with serious criminal records.
Critics of the programs say they would force state taxpayers to pick up the tab for millions of immigrants. Supporters counter that states should not interfere with federal immigration law.
Q: Which states sued the federal government to block the executive action, and why?
A: Texas and a coalition of other states sued last year to block executive action on immigration, arguing Obama had over-reached his authority, infringing on states’ rights.
“This lawsuit is not about immigration. It is about the rule of law, presidential power and the structural limits of the U.S. Constitution,” they noted in their lawsuit.
The coalition now includes 25 states, in addition to Texas: Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin.
Q: What’s the status of the executive action programs?
A: In February, Judge Andrew S. Hanen of the Federal District Court in Brownsville, Texas, issued a preliminary injunction halting the executive action programs while the case is pending and later refused to lift it. The government appealed, but in May, a different three-judge panel of the 5th Circuit refused to lift Hanen's stay after hearing oral arguments from both sides.
Attorneys for the states have argued that the Obama administration geared up for DAPA while the case was pending, issuing work permits.
After Judge Hanen railed against the administration, threatening to sanction them and subpoena Homeland Security Secretary Jeh Johnson as well as other officials for a contempt hearing, administration lawyers claimed they had rescinded the work permits and that the programs are on hold until the court cases are resolved.
Q: Who are the appeals court judges on the panel that heard arguments in July, and how are they expected to rule?
A: Two of the judges are conservatives who ruled against lifting the stay in May and are expected to rule against the administration again.
Judge Jerry E. Smith, 68, was appointed to the bench by President Reagan in 1987. Three years ago, during oral arguments in a case involving the Affordable Care Act, Smith made headlines when he ordered the Justice Department to provide the court with a three-page, single-spaced report explaining Obama's views on judicial review. Smith's order was prompted by remarks Obama had made about a case pending before the Supreme Court, saying any ruling to overturn the Affordable Care Act would be “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
Judge Jennifer Elrod, 49, previously ruled to uphold Texas’ restrictions on abortion access. Two years ago, Elrod also dissented when the full court, in a case called Villas at Parkside Partners vs. City of Farmers Branch, struck down a Texas city’s ordinance that effectively made it a crime for those who had immigrated illegally to rent homes. In her dissent, which was joined by Smith, Elrod said that the ordinance “does not constitute a regulation of immigration.”
In May, the two judges refused to lift the injunction halting the programs in part because they believed Texas officials could suffer a “cognizable injury” from the cost of having to issue driver’s licenses to at least 500,000 people who might be covered under the executive action. At the July hearing, the judges again questioned the impact executive action would have on the states and whether a slew of other landmark cases reinforced their standing to sue.
The third judge is Carolyn Dineen King, 77, a judicial moderate appointed by President Carter in 1979, who at the July hearing appeared to favor the administration, emphasizing that judges already have the authority to defer action on individual immigration cases.
Q: Why are immigrant advocates calling for the appeals court to rule immediately?
A: Many advocates assume the appeals court panel will rule against them – two of the three judges previously did - but that the case would then ultimately go to the U.S. Supreme Court, which would probably rule in their favor.
That process takes time, though. After the appeals court rules, attorneys for the states would have at least a month to file briefs, maybe more if they requested an extension. If the panel waits until late next month to rule, it may be too late for the high court to hear the case this term.
Even if the Supreme Court hears the case, the earliest a decision is expected is June, ahead of the presidential elections, which – if the court finds in favor of the programs - leaves only a few months for the administration to implement them.
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