The Hill (Op-Ed)
By David Leopold
July 4, 2015
The
5th Circuit recently announced the panel that will hear the full appeal
of U.S. District Judge Andrew Hanen’s order blocking DACA expansion and
DAPA, the president’s
deferred action programs that were announced last year as part of his
immigration executive actions. The three-judge panel includes Jerry E.
Smith, Jennifer Walker Elrod and Carol Dineen King. Smith was appointed
by Ronald Reagan. Elrod was appointed by George
W. Bush. King is a Carter appointee.
While
it’s now a near certainty that this panel will side with Hanen and
affirm his wrongheaded decision to block President Obama’s executive
actions — in late May Smith
and Elrod refused to lift the preliminary injunction Hanen had placed
on DACA expansion and DAPA — the three judges would be wise to take a
lesson from last week’s Supreme Court’s decisions on ObamaCare and gay
marriage. The court made clear in King v. Burwell
that political lawsuits die when they meet law, justice and common
sense. And it taught in Obergefell v. Hodges that the Constitution
belongs to everyone, regardless of race, religion, gender, sexual
preference or nationality.
That’s an important lesson for Smith, Elrod and King.
Like
King v. Burwell, the GOP’s Texas immigration lawsuit is a naked
partisan challenge brought by Republican governors and attorneys general
to target mixed-immigration
status American families. In the case of ObamaCare the goal was to
deprive Americans of subsidies to their healthcare premiums, exposing
them to life-threatening illnesses and death due to lack of access to
proper medical care. In the case Obama’s immigration
executive actions, the Texas lawsuit is aimed at foiling any solution —
even a temporary Band–Aid like deferred action — in aid of their
draconian goal of mass deportation.
As
with healthcare, the nation is badly in need of an overhaul of its
immigration policy — a policy whose cornerstones were laid more than a
half century ago to serve
the needs of America in the 1960s, not America in the 21st century.
And,
as with healthcare, same-sex marriage, fair housing, voting rights and a
host of other critical social and economic issues, extremists within
the American conservative
movement, many of whom are comfortably ensconced in the Republican
Party, remain, with few exceptions, virulently opposed to comprehensive
immigration reform. Not one of the GOP presidential hopefuls has offered
an immigration plan that will bring the visa
system in line with our global economy and offer a safe, orderly and
fair pathway to citizenship for the 11 million undocumented, aspiring
Americans. Nor, unfortunately, is there any hope that the GOP controlled
Congress will send Obama an immigration reform
bill he can sign any time soon.
Which
brings me back to the Texas immigration case and the lesson the 5th
Circuit appeals court panel hopefully will take from the Supreme Court’s
rulings last week. King
upheld a critical pillar of ObamaCare. The ruling demonstrates what the
Supreme Court can (and thankfully will) do when called upon to take
sides in a partisan political fight: refuse to take the bait.
Importantly,
King is a harbinger of things to come in the Texas immigration
litigation. At its core, the GOP lawsuit relies on a judge’s willingness
to credit political
diatribe over the plain language of the president’s deferred action policy. The GOP’s ability to temporarily block DACA expansion and DAPA were the result of Hanen’s enthusiastic willingness to ignore what the
guidance said in favor of what the GOP governors
and attorneys general say it says. As Judge Stephen Higginson recently
reminded his 5th Circuit colleagues, “On this record, as well as
focusing below on the four corners off the November 20 [DACA expansion
and DAPA guidance], I would say [the Obama administration]
is adhering to law, not derogating from it.”
Nor
should it be lost on the 5th Circuit judges that the U.S. Supreme Court
has recognized the president’s broad discretion in immigration
enforcement and not been timid
about quashing unjust attempts by State authorities to deprive
undocumented immigrants of due process — as it demonstrated Arizona v.
U.S. when it defanged the infamous S.B. 1070 “show me your papers law.”
These
last days in June have been historic: the Supreme Court upheld
ObamaCare and gay marriage and, after a horrific hate crime in South
Carolina, the Confederate flag
is finally coming down across the South. Yet noticeably absent has been
progress on immigration reform — there was no historical moment for the
11 million people who work, pay taxes, raise American families and long
to contribute to the country they have struggled
against all odds to embrace or for American businesses seeking to
compete in a global economy.
Last
week the Supreme Court made clear, as The New York Times’s Linda
Greenhouse aptly put it, that it will not buy into a “cynically
manufactured and meritless argument”
and thus come to “be perceived as a partisan tool.” In the coming weeks
the 5th Circuit court of appeals has the opportunity to follow the
Supreme Court’s lead, dismiss the GOP’s partisan attack on DACA expansion and DAPA and reassure America that it too will
resist being used as a partisan bludgeon. If it does, it may very well
save the Supreme Court the trouble of fixing another mistake.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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