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Federal appeals court: President Obama’s executive actions on immigration must remain blocked

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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.

4 comments

    • stryker

      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.”

  • David John Francis

    Bringing jobs, companies back from Mexico, Japan, China, India and other foreign nations, is a key issue that no other candidate has the possibility complying with Trump as President? Many foreign countries are playing us like a banjo. Not only hundreds of thousands of jobs, but reinvigorating our wilting economy. Donald Trump is true to his word as a master negotiator where corporate and industry is concerned. I believe without any doubt, that under a Donald Trump presidency no business will slip through the net and will be held accountable through paying 36 percent in tariffs while importing untaxed goods as they currently can do now. Why is a giant company as Ford Auto Manufacturing, Nabisco Foods, and soonest Boeing who is planning to build a huge complex in China, to build fighter aircraft? Surely there are regulations with military protocols, that this is a risk for our National Security. But then foreign hackers are creating havoc in our nation, by stealing aircraft plans, businesses, and even bank records.

    DONALD TRUMP CAN MAKE A HUGE DENT IN OUR NATIONAL DEBT OF 18 plus TRILLION DOLLARS BY IMPLEMENTING ENTRY TAXES FOR IMPORTED GOODS AS OTHER COUNTRIES CHARGE US. THIS IS NOT FREE TRADE–FAR FROM IT?

    Only Donald Trump can resolve the issues, which is wrecking this countries productivity. We have in Washington, a radical Homeland Secretary Jeh Johnson who I have just learned is issuing petitions from who he calls immigrant (actually illegal aliens) to bring their children into our sovereign nation. We have so much incompetence from King Obama down to officials unloading even more illegal aliens into the country.

    In his previous immigration 2015 conference this blowhard Johnson remarked saying “we should protect our borders, but building a wall across the entire Southwest Border is not the answer. Building a wall across the winding Rio Grande, through the remote desert, and in mountains 10,000 feet high is not the answer. Investing hundreds of millions, if not billions of dollars, in taxpayer money in building such a wall across the entire 1,900 mile border is not the answer.”

    Johnson added, “The best commentary on this that I heard was from a border security expert, somebody who works in DHS, “Wait a minute, do you really think that a migrant from Central America, who is motivated enough to travel the entire length south-to-north of Mexico and climb a 10,000 foot mountain is going to be deterred by a ten foot wall?” Or, as somebody else once said, “Build a fifteen foot wall and I’ll show you a sixteen foot ladder.” In fact, pursuant to the Secure Fence Act of 2006, we did build 700 miles of wall in the places where it makes sense. But in the future, more walls are not necessarily the answer. More technology for border security, not more walls.” That’s a big unrelenting lie? No 700 mile wall was ever built, as Former George Bush fence act signed into law.

    BUT DONALD TRUMPS WALL IS NOT THE ONLY DETERRENT? MAXIMIZING A NEW UPGRADE OF E-VERIFY THAT IS A MANDATORY AND NO LONGER OPTIONAL PUTS A STATUTE OBLIGATION ON EVERY BUSINESS IN THE UNITED STATES AND ITS PROTECTORATES, CARRYING HEFTY PUNISHMENTS OF HUGE 250K FINES AND ACTUAL 2 YEAR TERMS OF IMPRISONMENT FOR IGNORING THE RULE OF LAW.

    ICE NEEDS TO TRACK EVERYBODY WHO COMES INTO AMERICA, WHETHER A TOURIST OR STUDENT OR OTHER INDIVIDUAL WHO BECOME AN ‘OVERSTAYS’ THESE REALLY SHOULD BE CLASSIFIED AS ILLEGAL ALIENS AFTER THERE VISA RUNS OUT. AND TO PUT THESE ‘OVERSTAYS’ IN THE RIGHT PERSPECTIVE, THEY ARE JUST AS GUILTY OF ANYBODY WHO IGNORES OUR LAWS. THE TRUTH IS THEY ARE 40% OF THE INVASION FORCES?

    BUT YES! If it’s patrolled by unmanned drones, new types of sensors and the recruitment of US Border Patrol Agents. The money spent will be well worth it, as the $$100 to 200 billion dollars we are spending now, will be greatly reduced.

    Donald Trump was the only one who first spoke out relating to the illegal alien invasion. I trust the man who pledged to close our seemingly wide open border and put an end to the lies continuously lies emanating from Washington. Some politicians mean well, but already owe their votes to the special interests. Democrat Hillary Clinton begins that index, but not so much Marxist-Socialist Bernie Sanders who is probably financed by Billionaire, extreme Socialist George Soros; Jeb Bush is a classic insider of the good old boys network who is brought and sold by Super Pac money, as well Rubio, Christy and the rest of those trailing behind. All have a price on their head and must bow to their wealthy benefactors–the Wall Street moguls, Silicon Valley and the banks with monopolies. The pledges by lawmakers all tend to fade away, but ONLY DONALD TRUMP IS UNTOUCHABLE BY THE LOBBYISTS? The money people are scared because he can actually alter this nation’s path for America and it people and not make the 1 % even wealthier?

    Trump would argue the point about him building the wall, as he emphasized in his latest town meeting, is that the Israeli wall works extremely well, and keeps out the terrorists. A few may get across, but not families with children? For far too long politicians who were bought by the wealthy, Super Pacs and lobbyists have no influence over Trump. It’s not hard to imagine our previous Presidents, elected officials and politicians have been corrupted by the affluent corporate entities by money? As Donald Trump said today at his massive public meeting in Illinois, every politician and even outsiders owe the campaign contributors their loyalty. Even Carson has been brought by the special interests, although he doesn’t know it yet? As Donald Trump says handfuls of cash is there, but those people will return asking that do not vote on a certain bill. Great for the lobbyists, bad for the American people–ALWAYS!

    I don’t see America climbing out of this deep economic pit, without a strong, no nonsense personage as Donald Trump. His energy level is quite remarkable as he jumps from one auditorium to another crowded arena. I must admit that I admire Ben Carson, but more so Senator Ted Cruz of Texas. He barks out at the weak minded GOP leaders in Congress showing a superior will against the appalling laws that they approved for Obama. This to me that prior speaker John Boehner was in some kind of sly amalgamated bond with the Democrats and their zealot Liberal partners. We still should wonder why, speaker Boehner didn’t impeach this Liberalized President who has been spending absolute fortunes on vacations, for his family unlike anything seen before.

    And now the President Barack Obama’s plan to protect from deportation an estimated 5 million illegal immigrants in the United States has suffered another hindrance in court.

    In a 2-1 decision, the 5th U.S. Circuit Court of Appeals in New Orleans upheld a Texas-based judge Andrew S. Hanen injunction blocking the Obama administration’s immigration proposal that would use a series of executive tactics to give them a specific-legal class and work permits. Republicans had condemned the plan as an illegal executive overreach when Obama announced it last November. Twenty-six states challenged the plan in court.

    We have too many loopholes in our immigration laws, to many other unrelated problems which Donald Trump will finally close. I doubt if any other presidential hopefuls in the debates would enforce any of any of the immigration laws and would make some excuse to end this plague that seems unending? Only amending the Birthright Citizenship (14th Amendment) through a ruling through the Supreme Court, but what Trump or any other person may not even bother. However the parents are NOT immune from deportation.

    Your urged you to let the Republican presidential candidates know you oppose any move by Speaker Ryan to open the legal immigration floodgates. We also urge you to call your Representative and Senators, the Capitol Switchboard is 1-866-220-0044, tell them you oppose H.R. 3918. Send them the message that you want Congress to put American workers back to work before admitting even more foreign “guest workers” who will lower wages and continue the erosion of the quality of life for millions of native born American workers and legal residents already here and their families.

    WANT FACTS AND NOT THE PROPAGANDA FROM THE MAINSTREAM LIBERAL LEANING PRESS, AND THEN TURN TO THE’ CORRUPTION FILES’ AT JUDICIAL WATCH, A LEGAL NON PROFIT ORGANIZATION.

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