A federal appeals court on Tuesday ruled that President Barack Obama’s most recent executive actions on immigration should remain on hold as a legal fight plays out over his decision to grant quasi-legal status and work permits to millions more illegal immigrants.
The court rejected the administration’s request to lift an order blocking Obama from expanding a program for illegal immigrants who entered the country as children and creating a new program for illegal immigrant parents of U.S. citizens.
The New Orleans-based 5th Circuit U.S. Court of Appeals voted, 2-1, to deny an emergency stay of an injunction U.S. District Court Judge Andrew Hanen imposed on Obama’s plan earlier this year at the request of Texas and 25 other states challenging the president’s moves.
Writing for the majority, Judge Jerry Smith said the Justice Department had not met the legal standards required to block the lower court ruling.
In an opinion joined by Judge Jennifer Elrod, Smith sounded sympathetic to claims that Obama’s actions exceeded the authority given to the president and the executive branch by Congress.
“Although the Secretary [of Homeland Security] is given discretion to make immigration decisions based on humanitarian concerns, that discretion is authorized for particular family members and forms of relief,” Smith wrote. “Congress has developed an intricate process for unlawfully present aliens to reside lawfully….in the United States on account of their child’s citizenship…..Against that background, we would expect to find an explicit delegation of authority to implement [Deferred Action for Parents of Americans] — a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits — but no such provision exists.”
Smith also said the federal government had failed to show that Hanen erred when he concluded that the new program amounted to a formal rule that should have been put through formal notice-and-comment procedures. The Obama administration claims that the policy involves the exercise of case-by-case discretion, but the appeals court found the evidence on that point to be conflicting and said Hanen’s conclusion wasn’t “clearly erroneous.”
Judge Stephen Higginson, the sole Democratic appointee on the 5th Circuit panel, dissented from Tuesday’s ruling. He portrayed Obama’s moves not as favors for certain groups of illegal immigrants, but a logical effort to prioritize deportation efforts.
“”I would say [the Department of Homeland Security] is adhering to law, not derogating from it,” Higginson wrote.
“It is undisputed that the Executive presently is deporting a total number of immigrants at a faster rate than any administration before, ever; that the Executive is and should allocate limited resources to deport violent and dangerous immigrants, ahead of citizen–children’s parents who self-report to DHS acknowledging their illegal presence; and finally, that even categories of persons, like immigrants cooperating with the government in criminal cases or who contribute to our Armed Forces, historically receive deferrals,” the 5th Circuit judge added.
Higginson said he believes the lawsuit brought by the states is “non-justiciable,” meaning it is in a category of disputes the courts refrain from ruling on because doing so would impinge on the executive branch’s traditional authority.
The Obama administration can now turn to the U.S. Supreme Court for a green light to proceed with the program, or Justice Department officials could wait until the 5th Circuit rules on the merits of Hanen’s legal rationale for the injunction he entered in February. A different panel of the appeals court is expected to hear arguments on those issues in early July.
A White House official had no direct comment on the possibility of Supreme Court action, but said the Justice Department will consider what steps to take as the litigation goes forward.
White House spokeswoman Brandi Hoffine said the ruling Smith and Elrod issued Tuesday was off base.
‘Two judges of the Fifth Circuit chose to misinterpret the facts and the law in denying the government’s request for a stay. As the powerful dissent from Judge Higginson recognizes, President Obama’s immigration executive actions are fully consistent with the law,” Hoffine said.
Hoffine called Obama’s immigration moves “squarely within the bounds of his authority and they are the right thing to do for the country.”
Some of the first reaction to the 5th Circuit ruling came in a tweet from Texas Gov. Greg Abbott (R), who as Texas attorney general launched the charge for the states attacking Obama’s moves.
“Texas just won the Executive Amnesty case at the 5th Circuit Court of Appeals,” wrote Abbott, using a shorthand for Texas v. United States. “The constitution wins.”
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) also hailed the ruling.
“Today’s decision from the federal appeals court is another victory for the Constitution and the American people,” Goodlatte said in a statement. “President Obama’s executive overreach on immigration poses a clear and present danger to our Constitution and I am pleased that the President’s actions continue to be halted so that the states’ lawsuit can continue to move forward.”
Immigrants rights activists urged Obama to act swiftly to get the Supreme Court’s blessing to move forward with the programs.
Marielena Hincapie of the National Immigration Law Center encouraged the administration to move “quickly and aggressively” by “taking the matter to the supreme court as quickly as possible. “
“The longer this justice is delayed, the harder the impact will be on our communities,” she said in a conference call with reporters. “We know that this decision is on the wrong side of the law. We know that we are on the right side of history.”
The three 5th Circuit judges deciding the case were randomly selected. Smith was appointed by President Ronald Reagan, Elrod by President George W. Bush and Higginson by Obama.
Hanen ruled in February that Obama’s November actions violated federal law because they were not properly announced and opened for public comment before being put into effect. The judge did not rule explicitly on questions many Republicans in Congress have raised about the president’s legal authority to carry out his moves.
Seung Min Kim contributed to this report.