Federal appeals court: President Obama’s executive actions on immigration must remain blocked
WASHINGTON, D.C. — A federal appeals court said President Barack Obama’s controversial executive actions on immigration — aimed at easing deportation threats for millions of undocumented immigrants — must remain blocked.
On Monday night, November 9th, the 5th Circuit Court of Appeals ruled 2-1 that a lower court did not “abuse its discretion” when it said challengers to the law were likely to succeed in their claim that the programs were unlawful because they didn’t comply with the Administrative Procedure Act (APA), a law that sets forward how federal agencies can establish regulations.
The ruling is a loss for the President — who made immigration reform a key second-term initiative. The Department of Justice said Tuesday that it disagreed with the ruling and plans to seek review from the Supreme Court.
“The Department of Justice remains committed to taking steps that will resolve the immigration litigation as quickly as possible in order to allow DHS to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children,” Justice Department Patrick Rodenbush said in a statement.
Under normal circumstances, in order for the Supreme Court to hear the case this term, briefing would have to be completed by mid-winter.
Texas and 25 other states had challenged the President’s authority to implement the programs.
“Immigrant families and their U.S. children have been waiting anxiously for the Fifth Circuit to rule,” said Karen Tumlin of the National Immigration Law Center. “We urge the DOJ to immediately ask the Supreme Court to review this erroneous decision.”
Details of the ruling
The 70-page opinion was penned by Judge Jerry E. Smith, a Ronald Reagan appointee, along with Judge Jennifer Elrod, who was appointed to the bench by George W. Bush.
Smith wrote, “Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for this injunction.”
Texas Attorney General Ken Paxton praised the ruling.
“Today, the Fifth Circuit asserted that the separation of powers remains the law of the land, and the president must follow the rule of law, just like everybody else,” he said in a statement.
“Throughout this process, the Obama Administration has aggressively disregarded the constitutional limits on executive power, and Texas, leading a charge of 26 states, has secured an important victory to put a halt to the president’s lawlessness.”
The President’s plan
Obama unveiled the new policies to great fanfare last November with the aim to marshal government resources and advance public safety and national security goals.
As part of the roll out, the administration established a process — called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) — to enable about 4.3 million otherwise removable undocumented immigrants to be eligible for work authorization and associated benefits.
The executive actions also expanded the Deferred Action of Childhood Arrivals (DACA) — a program that allows non citizens who were brought here as children to apply for work authorization and protection from deportation for three years.
Before the programs were slated to go into effect they were challenged by Texas and 25 other states. Republican governors argued the unilateral actions were unconstitutional, and that the administration also violated the APA.
DOJ lawyers countered that the actions were lawful and a “quintessential exercise of prosecutorial discretion” not subject to judicial review. They argued that Texas lacked the legal harm — or “standing” — necessary to bring the challenge.
Carolyn D. King, appointed to be bench by Jimmy Carter, wrote the dissent.
“There can be little doubt that Congress’s choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions,” she wrote.
She said, however, that “federal courts should not inject themselves into such matters of prosecutorial discretion.” She also criticized the majority for taking so long to issue its opinion. “There is no justification for that delay,” she said.
Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, filed a brief on behalf of a bipartisan group of former members of Congress in support of the administration.
“The 5th Circuit majority misunderstands the discretion given to the executive under existing immigration law which the Supreme Court itself has explicitly recognized,” she said.
Voces de la Frontera officials issued this statement in response to the action by the Fifth Circuit Court of Appeals:
“In a 2-1 decision, a panel of judges on the Fifth Circuit Court of Appeals in New Orleans ruled against President Obama’s November 2014 executive actions on immigration which sought to protect some 4 million families from deportation. The judges had delayed issuing their decision much longer than usual in a biased tactical decision to prevent the US Supreme Court from ruling on the case until past the presidential election in November 2016.
These judges have decided to act as the judicial arm of the Republican anti-immigrant agenda”, said Christine Neumann-Ortiz, Executive Director of Voces de la Frontera Action. “It was the pressure from immigrant families and allies fasting outside on the courthouse steps in New Orleans that forced the court to issue a decision, allowing the case now to proceed to the US Supreme Court.“
Neumann-Ortiz continued, “Immigrant families and allies are marching in Milwaukee today to challenge the level of racism and hate promoted by all the Republican presidential candidates, today holding their debate in Milwuakee. All of the Republican candidates want to repeal deferred action for Dreamers and their parents and implement mass deportation policies.”
Wisconsin Attorney General Brad Schimel issued this statement:
Last night, the United States Court of Appeals for the Fifth Circuit issued its decision affirming a lower court’s order striking down President Obama’s immigration rule, known as the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program (DAPA).
In all, 26 states, including Wisconsin, sued the Obama administration in December 2014 to block the program, which would have granted lawful status to approximately 4.3 million illegal immigrants nationwide. Originally, a federal judge in Texas halted the program earlier this year, and that decision was affirmed by the Fifth Circuit headquartered in New Orleans.
“This court decision is yet another example of the federal government acting beyond its authority by issuing unlawful regulations, and it is my job as attorney general to protect the state against this type of federal overreach,” said Wisconsin Attorney General Brad D. Schimel.
The lawful status granted by DAPA would have resulted in the issuance of work permits, social security cards, earned-income tax credits, and other federal benefits to millions of illegal immigrants. Also, during the course of the litigation, Wisconsin submitted evidence showing that DAPA would have required Wisconsin state agencies to provide driver’s licenses, health benefits, unemployment benefits, professional licenses and concealed-carry permits to illegal immigrants here in Wisconsin.
The Fifth Circuit ruled that the Obama administration violated federal law by failing to follow “notice-and-comment” rulemaking requirements before issuing DAPA. The court also determined that DAPA conflicted with federal immigration law, which requires removal of illegal immigrants, with certain specific exception). DAPA created entirely new criteria and processes for allowing illegal immigrants to stay in the United States, contrary to Congressional intent. The court wrote that federal law “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.”
The current case is one of a number of lawsuits the State of Wisconsin has brought against the Obama administration over unlawful regulations. Wisconsin also is challenging the Environmental Protection Agency’s Clean Power Plan, which would drastically increase energy rates in Wisconsin by shutting down coal plants. Additionally, the State of Wisconsin, along with a number of other states, was successful recently in obtaining a stay of the EPA’s “Waters of the United States” rule, which unlawfully grants the federal government jurisdiction and regulatory authority over virtually every stream in the country.
The case will likely be appealed to the U.S. Supreme Court.