NEW ORLEANS — Government lawyers labored on Friday to persuade federal appeals court judges here to allow President Obama to move ahead with sweeping initiatives to protect immigrants in the country illegally. But the judges’ questions seemed to make it ever more unlikely that the president’s programs, which he has hoped would be a central piece of his legacy, would start any time before the last months of his term, if at all.
A panel of three judges of the United States Court of Appeals for the Fifth Circuit heard arguments in a lawsuit by Texas and 25 other states challenging executive actions Mr. Obama announced in November that would give temporary reprieves from deportation to as many as four million immigrants and also permit them to work.
Police officers arrested protesters after hundreds of people staged a sit-in at an intersection to bring attention to immigration reform. Credit Edmund D. Fountain for The New York Times
But even though the judges issued no decision on Friday, it seemed highly probable that the administration would lose. By a stroke of bad luck for Mr. Obama and good fortune for the states bringing the lawsuit, two judges on Friday’s panel — Judge Jerry E. Smith and Judge Jennifer Elrod — are the same conservatives who ruled against the administration in May. Court officials said both panels had been randomly selected, well before the administration even brought its case to the Fifth Circuit.
A setback now would be decisively damaging to the president’s argument that he has full authority to carry out the vast programs nationwide and would leave the administration little choice but to take the case to the high-stakes and slow-moving deliberations of the Supreme Court and to hope for a favorable ruling before the end of its term in June of next year.
Mr. Obama has run into far deeper legal trouble than officials anticipated when they decided last year to create a program by executive action, without approval by Congress, extending deportation deferrals and work permits to millions of undocumented immigrants who are parents of American citizens or legal residents.
Judges Smith and Elrod peppered the government’s lawyer, Benjamin C. Mizer, a principal deputy assistant attorney general, with skeptical questions about his contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States.
Referring to Homeland Security Secretary Jeh Johnson, Judge Elrod asked, with a note of incredulity, “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”
The administration’s arguments about the president’s powers have faltered over Texas driver’s licenses. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Judge Smith, in his 42-page opinion in May, agreed.
But Scott Keller, the solicitor general of Texas who argued for the states, drew concern from all three judges when he said Mr. Obama’s programs were not only a “sweeping assertion of executive power” but were breaking the law. His arguments raised complex new issues for the judges to consider this time around, probably extending the time before they rule.
The judge who sided with the administration in May, Stephen A. Higginson, was not on the panel on Friday. The third member was Carolyn D. King, nominated in 1979 by President Carter, and formerly chief judge of the Fifth Circuit. She sharply questioned Mr. Keller, the Texas lawyer.
Jurists and legal experts familiar with procedures in the Fifth Circuit court said it was coincidence — and very unusual — that the two panels hearing different phases of the immigration lawsuit included two of the same judges. Judge Smith is an outspoken conservative who has wrangled publicly with Mr. Obama over the extent of the president’s powers.
Court officials said the chief judge, Carl E. Stewart, was so concerned it might appear that the court had acted improperly to influence the immigration case that he ordered a clerk to flip a coin in the presence of witnesses to decide which of two panels scheduled to hear cases this week would handle the Texas lawsuit.
The debate in the hushed, elegant courtroom was overwhelmed several times by the sounds of drums and horns from about 600 protesters from immigrant rights groups in the street outside, including people who traveled from California, Arizona, Texas and Alabama.
A smaller group sat down in the street in front of the offices nearby of the federal Immigration and Customs Enforcement agency. A spokesman for the protesters said 14 people were arrested, but were quickly released.
“People are still getting deported every day,” said Saket Soni, the executive director of the New Orleans Workers’ Center for Racial Justice. He said the demonstrations were intended to “supply hope to the movement and signal to ICE there is much more of this coming.”
The administration has faced even more serious legal trouble with the federal district judge in the case, Andrew S. Hanen. He has chastised officials for failing to inform him that more than 100,000 deferrals with extended three-year terms had been issued under the president’s programs to young immigrants before he imposed the injunction. He ordered the government to cancel the deferrals and collect about 2,000 work cards that were also granted.
Infuriated that the administration had not collected every card, on Tuesday, Judge Hanen issued an unusually harsh rebuke, calling the officials’ conduct “unacceptable and completely unprofessional.” In an action federal judges rarely take, he ordered the secretary of Homeland Security, Mr. Johnson, to appear in person in his Brownsville court on Aug. 19 to explain why the judge should not find him in contempt.
On Monday night a federal judge in Texas ordered a halt to President Barack Obama’s executive actions to shield more than four million people from the possibility of deportation.
So, what does it all mean? What happens next?
Here are five things to know about the judge’s decision.
1. The order is just a preliminary injunction, but suggests a tough legal battle ahead.
In a Republican-led lawsuit brought by Texas and 25 states, Judge Andrew S. Hanen issued a preliminary injunction stopping the Obama administration from implementing the president’s recently announced executive actions to confer temporary lawful presence and 3-year work permits to more than 4 million undocumented immigrants who are considered a low priority for deportation.
Hanen’s 123-page ruling found that the states have “standing” to sue and suggests that he will probably agree with their argument on the merits. The appeals court and perhaps the Supreme Court will have the ultimate say in the matter.
2. The ruling only stops Obama’s recent deportation relief initiatives announced in November 2014.
The programs put on hold are the expansion of the 2012 Deferred Action for Childhood Arrivals and the new Deferred Action for Parents of Americans. Both announced in November 2014, the DACA expansion was scheduled to start taking applications on Feb. 18 while DAPA applications were set to begin on May 20. Neither can move forward until the injunction is lifted by a higher court or the case is resolved on the merits.
Numerous immigration law experts have said Obama’s executive actions fall within the boundaries of his executive authority. The Supreme Court has affirmed broad executive authority when it comes to immigration enforcement, and prior presidents like George H. W. Bush have taken similar steps to protect categories of undocumented immigrants in the past. The current legal dispute concerns actions by Obama that are unprecedented in scale.
3. The order doesn’t affect the 2012 program to protect DREAMers.
The order does not affect the existing DACA program, which has currently shielded hundreds of thousands of young people brought to the U.S. as children, commonly called DREAMers.
It also doesn’t mean the Obama administration has lost the fight over the new actions — far from it. Immigrant rights groups are downplaying the judge’s decision, telling their members to prepare to apply for the expanded programs because they expect the ruling to be overturned by higher courts.
In a message to members, United We Dream declared, “Don’t be worried” and portrayed the lawsuit a stunt by Republicans.
“We are confident that the higher courts will reject this lawsuit since it has no legal merit and only wastes taxpayer dollars & attack immigrant youth, workers & families,” the group wrote. “This decision only delays the application process.”
4. The judge’s move is a wrinkle in the DHS funding fight ahead of a possible shutdown.
The judge’s decision could affect the political battle over immigration. To counter Obama’s immigration move, congressional Republicans have been blocking funding for the Department of Homeland Security. But that legislative has been fought to nearly a draw, with Senate Democrats filibustering and the White House promising a veto. Republican leaders might come to see the court victory as the off-ramp they’ve been looking for from the DHS funding fight.
For now, though, there’s no sign of that, and leaders are steeling for a partial shutdown on Feb. 27. House Speaker John Boehner (R-OH) and Senate Majority Leader Mitch McConnell (R-KY) responded to the court order with statements calling on Senate Democrats to drop their filibuster of House-approved legislation that funds DHS while reversing Obama’s new executive actions.
“We will continue to follow the case as it moves through the legal process,” Boehner said. “Hopefully, Senate Democrats who claim to oppose this executive overreach will now let the Senate begin debate on a bill to fund the Homeland Security department.”
5. The judge’s decision was not a surprise — he has strongly criticized the Obama administration on immigration.
The decision was not a surprise to those following the case because Hanen has previously chastised the Obama administration’s immigration enforcement methods as too lenient and flouting the rule of law. In other words Texas Republicans landed the case before their dream judge.
The Obama administration said it intends to appeal the order to the conservative-leaning 5th Circuit Court of Appeals. The case could potentially rocket to the Supreme Court.
“The Department of Justice, legal scholars, immigration experts, and the district court in Washington, D.C. have determined that the President’s actions are well within his legal authority,” White House spokesman Josh Earnest said Tuesday. “Top law enforcement officials, along with state and local leaders across the country, have emphasized that these policies will also benefit the economy and help keep communities safe. The district court’s decision wrongly prevents these lawful, commonsense policies from taking effect and the Department of Justice has indicated that it will appeal that decision.”
In December of 2014, The ImmigrationProf Blog reported that a federal district court in Pennsylvania had struck down the President’s immigration actions:
Judge Arthur Schwab of the U.S. District Court in the Western District of Pennsylvania held that the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides “substantive rights” to applicable individuals. Finding that the executive action amounts to legislation, Judge Schwab concluded that the executive action violated separation of powers and the Take Care Clause of the Constitution (Article II, Sec. 3) (providing that the President must “take Care that the Laws be faithfully executed”).
One might reasonably ask how the issue get to the court so fast. The issue arose in the case of Elionardo Juarez-Escobar, who had previously been deported, reentered the country, been arrested for suspicion of driving under the influence, turned over to the Department of Homeland Security, and charged with — and pleaded guilty to — illegal re-entry into the country. His sentencing was pending when President Obama announced the executive action on immigration on November 20.
Judge Schwab used the illegal re-entry case as a launching pad for a broadside attack on President Obama’s immigration actions, in particular the deferred action program and the removal priorities.
While it seems clear that Juarez-Escobar would not be eligible for relief, Judge Schwab in a somewhat meandering opinion stretches to find a possible claim in an apparent attempt to place in doubt many of the Obama administration’s actions. Judge Scwhab also attacks “sanctuary cities,” suggesting that the defendant may have a claim of arbitrary treatment because he would not have been turned over to the DHS by local police in some jurisdictions.
The Court asked for additional briefing and notice about what the defendant may seek to do (including possibly withdrawing his guilty plea) by January 6, 2015. We can expect this case to be in the news in the coming year.
This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States.
Judge Schwab has been the subject of critical commentary (and here) in the past. For the argument that the judge, not President Obama, is engaging in immigration activism, click here.
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