The Hill
By Jordan Fabian
July 10, 2015
The
Obama administration faces an uphill battle on Friday when it seeks to
convince a panel of federal judges to let the president’s executive
actions on immigration take
effect.
The
same two Republican-appointed judges who denied an earlier
administration attempt to lift a hold on Obama’s immigration actions
will hear arguments at the Fifth Circuit
U.S. Court of Appeals in New Orleans.
Court
watchers expect an unfavorable ruling for Obama from the three-judge
panel, which sits on the most conservative circuit in the country.
“It’s
likely to be a similar result,” said Carl Tobias, a professor at the
University of Richmond School of Law. “It’s unlikely that [the two
judges] will change their
views.”
The
White House is encountering legal roadblocks on immigration after two
recent Supreme Court victories on same-sex marriage and healthcare,
which gave the president
a jolt of momentum late in his second term.
With
just 18 months left in Obama’s presidency, the court battle has put his
programs in peril. Experts believe the case will eventually end up
before the Supreme Court,
which could rule on the case as late as June 2016.
If
the White House eventually wins, it could leave just a few months to
implement the program. But if it loses, it would strip away a major
promise Obama made to Latino
groups in the run up to the 2014 midterm elections.
The
atmosphere surrounding the hearing is certain to be charged. Reps. Luis
Gutiérrez (D-Ill.) and Rep. Raúl Grijalva (D-Ariz.), as well as
immigrant-rights advocates,
plan to demonstrate outside the courthouse to call on the judges to
allow Obama’s programs to go into place.
It
will also take place against the backdrop of a recent fatal shooting of
a California woman, allegedly by an undocumented immigrant, and amid
fallout from incendiary
remarks on immigration from Republican presidential hopeful Donald
Trump — both of which have further roiled the debate nationwide.
After
Congress failed to pass a sweeping immigration overhaul last year,
Obama issued executive orders in November allowing certain immigrants who are parents of U.S. citizen or legal resident children to apply for deportation reprieves and work permits.
They
also expanded a 2012 program, known as Deferred Action for Childhood Arrivals (DACA), providing similar relief to immigrants brought to the
U.S. as children. The
orders, if fully enacted, could affect as many as 5 million
undocumented immigrants.
Led
by Texas, 26 mostly Republican-led states sued the administration,
arguing the moves overstepped Obama’s executive authority.
They
also claimed the programs would harm the states by imposing added costs
related to drivers licenses for people who receive deportation
referrals.
The
White House has steadfastly maintained that the president acted within
the law by using “prosecutorial discretion” to exempt non-criminal
immigrants from deportation.
They also say the states ignored economic benefits, such as added tax
revenue.
U.S.
District Court Judge Andrew Hanen, a George W. Bush appointee, sided
with the states in February, handing down an injunction blocking the
programs from taking effect
while the court considers the lawsuit.
In
May, circuit Judges Jennifer Elrod and Jerry Smith rejected an
emergency request from the Department of Justice to allow the actions to
proceed.
They
argued the states made a compelling case they would suffer harm if the
program was let to move forward, and that the administration’s appeal
was unlikely to succeed
on the broader legal issues.
The
administration also contended the 26 states that brought the suit don’t
have standing, though the two judges appeared skeptical of that
argument as well.
On
Friday, Smith and Elrod will again hear arguments from Obama
administration lawyers and attorneys representing the states — this time
focusing on whether the Texas
judge’s order was legal.
“The
two judges were convinced that Texas was likely to prevail on the
merits,” said Josh Blackman, a constitutional law professor at the South
Texas College of Law, who
helped file a legal brief backing the lawsuit against Obama’s programs.
Joining them on the panel will be Judge Carolyn King, who was appointed by Democratic President Jimmy Carter.
King
in April ruled in favor of the Obama administration on a separate
lawsuit challenging his 2012 immigration action, and advocates hope she
will side with the president
again.
Obama was set to huddle with Attorney General Loretta Lynch at the White House Thursday afternoon, one day before the arguments.
"The
administration continues to have a lot of confidence in the power of
[our] legal arguments," White House press secretary Josh Earnest said
Tuesday.
Immigrant
rights advocates, meanwhile, have expressed frustration at the delay.
While they continue to press for the programs to go into effect, some
advocates are turning
their attention to other efforts as the lawsuit works its way through
the courts.
“I
think there is a realization the delay is longer than we have hoped
for,” said Marielena Hincapié, executive director of the National
Immigration Law Center.
Four
different advocacy groups are convening a strategy session in New
Orleans to raise awareness of other immigration actions not affected by
the lawsuit, Hincapié said,
including new guidelines that seek to reduce deportations of immigrants
who are not deemed to pose a threat to public safety.
Advocates
remain confident the orders will eventually go into place. But until
then, they intend to punish Republicans for supporting the lawsuit.
The
executive actions are popular with Hispanic voters, who will play an
influential role in the 2016 elections. Candidates such as Sens. Ted
Cruz (Texas) and Marco Rubio
(Fla.) want to end Obama’s programs.
House Republicans introduced a bill this week that would cut off funding for the initiatives if they take effect.
“This
might be short term victory for the GOP. But a year from now, they are
going to be looking at a much bigger lawsuit before the Supreme Court,
which will be magnified
by the fact it will take place in an election year,” said David
Leopold, former president of the American Immigration Lawyers
Association and a backer of Obama's programs. “In the long term, they
are going to be the big losers.”
A victory in court, however, could embolden Republicans who have accused Obama of abusing his executive powers.
“It
is inconsistent with the law,” Cruz said during a recent interview with
Jorge Ramos. “What Barack Obama is doing is what dictators in other
nations have done.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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