Obama Seeks Conservative Court’s Relief on Immigration Plan Halt

Bloomberg

By Laurel Brubaker Calkins

April 17, 2015

Obama Seeks Conservative Court’s Relief on Immigration Plan Halt 

President Barack Obama’s efforts to let almost 5 million undocumented immigrants stay in the U.S. may languish as his second term winds down unless he can win over one of the nation’s most conservative appeals courts.

Two of the three appellate judges in New Orleans who will take up the case were nominated by Republican presidents, and one of those has described himself as a former “right-wing activist.”

Obama’s immigration order has become a flashpoint in Washington, with Republican lawmakers maintaining that his actions were unconstitutional. In February, House Republicans threatened to withhold funds for the Department of Homeland Security over the program, and passed a bill just before funding was set to expire.

Texas, with the backing of 25 other states, won a court order putting the immigration program on hold. Sidney Powell, an attorney with 20 years of experience arguing before the New Orleans court, said the makeup of the panel that will consider the case Friday makes an Obama win unlikely.

“Based on these judges’ track records, this panel will give a lot of weight to the states’ arguments,” Powell said. “The states should certainly win this hearing.”

Justice Department lawyers are asking the appeals court to suspend the lower-court ruling blocking the immigration program. They may face a tough audience.

U.S. Circuit Judge Jerry E. Smith, a Ronald Reagan appointee and the self-described former “right-wing activist,” made a government lawyer write a three-page research paper in 2012 after he suggested federal judges lack authority to overturn unconstitutional laws.

A second panel member, U.S. Circuit Judge Jennifer Walker Elrod, is an appointee of George W. Bush, while the third, Stephen A. Higginson, was nominated by Obama.

The 26 states sued in December to derail Obama’s deferred-action initiative, calling it illegal executive amnesty. They claim the president lacks authority to alter immigration laws and award federal benefits to undocumented immigrants without the approval of Congress or U.S. judges.

By filing the case in Brownsville, Texas, the states had a 50 percent chance of having the case heard by U.S. District Judge Andrew Hanen, a conservative Bush appointee who had blasted Obama’s immigration policy as a failure in an unrelated 2013 case.

Punishment Threatened

Hanen not only barred the the federal government from proceeding with the program while he decides whether the president violated the Constitution, he threatened to punish Justice Department lawyers if he determines they misled him.

The government hadn’t “shown any credible reason” why Obama’s order needed immediate implementation, Hanen wrote. “There is no pressing, emergent need for this program.”

The judge’s order halted federal implementation of two key pillars of the president’s immigration plan: an expansion of the program that offered relief to immigrants brought illegally to the U.S. as children, and a new opportunity for the parents of U.S. citizens and permanent residents to remain in the country.

Friday’s hearing is focused on Hanen’s stand-still order. The judge concluded the White House skipped a requirement to let the public review and comment on a substantial change to federal law before it’s implemented. Hanen said the new program strips immigration agents of discretion, which he said was enough to halt the program on procedural grounds until he can rule on the constitutional issues at a trial.

Scarce Resources

The White House contends it can marshal scarce border-security resources and enforce immigration laws however it chooses. The administration also claims the new rules don’t trigger federal policy-making regulations, as Hanen and the states contend, because immigration agents retain discretion to gauge each applicant on a case-by-case basis.

Texas urged the court to keep the hold intact, arguing it will be almost impossible to recover permits and benefits from people if the program is ultimately thrown out. The complaining states also said the court should discount calculations by 14 other states, which have aligned with the White House, that predict many states will experience increased tax revenues from fully employed immigrants that will exceed the costs of providing them with additional services.

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