Politico
By Seung Min Kim
July 10, 2015
President Barack Obama appears likely to lose – again – in the protracted legal fight over his executive actions on immigration.
Two
of the three appeals court judges who heard oral arguments Friday on
the Obama administration’s immigration programs were skeptical about the
legal merits of the directive,
which could halt deportations for more than 4 million immigrants here
illegally who have family ties in the United States.
The
chilly reception from the three-judge panel in the Fifth Circuit Court
of Appeals on whether Obama had legal authority to take such action
seems to indicate that a
lower court decision blocking the new programs would stay in place.
The
Obama administration has argued that the executive actions were a
standard use of prosecutorial discretion, since the federal government
does not have the resources
to deport the estimated 11 million immigrants here illegally. But Judge
Jerry Smith disputed that contention.
“It
puts them one step ahead in terms of being eligible for lots of
potential benefits, whether those are Social Security and Medicare, work
authorization, earned income
tax credits, and on the state level, drivers’ licenses,” Smith said of
immigrants who would benefit from Obama’s actions. “Just seems to me
that … it really is a lot more than prosecutorial discretion.”
And Judge Jennifer Walker Elrod, like Smith a Republican appointee, repeatedly grilled administration lawyers on Friday.
She
had questions on whether the Department of Homeland Security had
“boundless” authority to grant work permits, and whether so-called
“deferred action” — stopping deportation
of certain undocumented immigrants — could give work authorization to a
broad class of people here illegally.
“It
would seem that it would be unlawful to allow other people to have deferred action with work authorization when who gets work authorization
is specifically limited
to very narrow classes,” Elrod said.
Benjamin
Mizer, the acting assistant attorney general for the Justice
Department’s Civil Division, argued that both of the elements at the
heart of Obama’s directive —
stopping deportations and subsequently granting those immigrants work
permits — were legally sound.
“It
doesn’t make much sense to say, ‘We’re not going to be able to remove
you right now, so you have to go back out into the country, but you’re
not allowed to work, [and]
if you’re gonna work, it has to be off the books,’” Mizer said. “As a
policy matter, it doesn’t make sense.”
The
drawn-out legal case over Obama’s executive actions, which he
announced last November to much fanfare and controversy, threatens to
undermine what otherwise would
have been a legacy item for the president in his second term.
Few
expect Obama to prevail in the Fifth Circuit, which already rejected an
emergency request from the administration to let the executive actions —
scheduled to begin
in February but on hold since then — to proceed while the larger legal
case plays out in the courts. The New Orleans-based court is considered
the most conservative appeals court in the country.
The
two judges who ruled against the Obama administration in that May
decision also heard the two-hour oral arguments Friday: Elrod, who was
appointed by President George
W. Bush, and Smith, appointed by President Ronald Reagan.
Now,
the bigger question in the legal case is timing — and whether a
high-stakes legal fight over Obama’s immigration actions will explode in
the heat of the 2016 presidential
campaign.
The
Fifth Circuit judges don’t have a deadline for delivering their final
ruling. And after the appeals court considered the stay, that ruling
wasn’t handed down until
more than a month after the oral arguments in April.
It’s
conceivable that — if the battle goes to the Supreme Court and justices
take the case — a final decision on the legality of Obama’s actions may
not come before June
2016.
Immigration
advocates are already expecting a loss at the Fifth Circuit. Marielena
Hincapie, the executive director of the National Immigration Law Center,
attended the
hearing, and she argued that the Republican-appointed judges, as well
as the attorney representing the states suing the administration,
“really showed a tremendous lack of understanding of deferred action, as
well as prosecutorial discretion.”
“This
is most likely going to end up at the Supreme Court,” Hincapie told
reporters after the oral arguments ended. “Again, regardless of where
this panel, how this panel
rules … we’re pretty confident … that implementation is inevitable.”
The
lone Democratic appointee on the panel appeared to lean in favor of the
administration’s arguments, and gave the lawyer representing Texas and
25 other states suing
the administration one of the toughest rounds of questioning.
Judge
Carolyn Dineen King, who was appointed by President Jimmy Carter,
repeatedly pressed Texas Solicitor General Scott Keller on an argument
that the states suing Obama
did not want to give immigrants the legal ability to work — even if
they were unlikely to be deported.
“You’re
not contesting the aliens’ ability to stay here. They can stay,” King
told Keller. “What you don’t want them to be able to do is work.”
Keller
also insisted to King at one point that a president did not have power
to grant deferred action even to individuals – a point Keller later
corrected.
The
Texas solicitor general contended that executive actions would have a
financial impact on the states, since they would have to shoulder the
costs for issuing drivers’
licenses, as well as health care and education.
Keller
also referred to Obama’s comments in November that “I just took action
to change the law” – a phrase that the White House later clarified as
Obama speaking colloquially.
“And
that’s what precisely DAPA did,” said Keller, referring to the
shorthand for the program, Deferred Action for Parents of Americans. “And the reason
it did is because without DAPA, there is no statute or rule that allows
the executive to grant lawful presence to the 4.3 [million] potential
DAPA beneficiaries.”
The
arguments at the New Orleans-based appeals court attracted hundreds of
immigrant-rights protesters who have long advocated for the executive
actions that could affect
the millions here illegally, activists at the scene said. Rep. Luis
Gutierrez (D-Ill.), a leading immigration advocate on Capitol Hill,
traveled down to the city for oral arguments, and brass band playing in
the streets outside interrupted the hearing several
times.
Protesters
from the Fair Immigration Reform Movement – the nationwide umbrella
coalition for an array of immigrant-rights groups – in New Orleans
numbered nearly 600,
representing 21 states, the group said.
Separately,
undocumented immigrant protesters blocked roads in front of the New
Orleans offices of Immigration and Customs Enforcement, one of three
federal agencies that
carry out immigration laws, in what they said was a show of civil
disobedience. Fourteen people were arrested but later released, said
representatives for the New Orleans Workers’ Center for Racial Justice,
which organized the protest.
Meanwhile,
legal drama is continuing to play out at the federal courthouse in
Brownsville, Texas – where District Judge Andrew Hanen first handed down
the decision in
February that put Obama’s immigration programs on hold.
Hanen
is ordering Homeland Security Secretary Jeh Johnson and other top
immigration officials to appear before him in August to explain why the
administration keeps issuing
work permits for undocumented immigrants under criteria that are
currently blocked under Hanen’s order.
The
executive actions that Obama announced last November grant three-year
work permits to undocumented immigrants who have been here for more than
five years and have
children who are U.S. citizens or green-card holders. Before that,
immigrants who were shielded from deportation by the administration –
mostly those who came here illegally as children – only got two-year
permits under a 2012 directive from Obama. (The 2012
order is unaffected by Hanen’s ruling.)
But
about 2,500 three-year work permits have been issued by the Obama
administration even after Hanen’s injunction, infuriating Hanen and the
states that have sued. The
latest revelations came Thursday, when the administration said in court
filings that they found another 500 three-year work permits, in
addition to the 2,000 that had already been discovered.
Hanen
had said he’d be willing to dismiss his demand for Johnson to appear
before him in court if he’s satisfied with the steps that the
administration takes to revoke
the three-year permits. The Obama administration said in the Thursday
court filing that it would file a status report on July 31 about how the
government is trying to correct those issues.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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