New York Times
By Julia Preston and Michael Shear
November 9, 2015
A federal appeals court said Monday that President Obama could not move forward with his plans to overhaul immigration rules by providing up to five million people with work permits and protection from deportation.
A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled 2 to 1 against an appeal by the Obama administration, saying a lawsuit brought by 26 states to block Mr. Obama’s actions was likely to succeed at trial.
The ruling is the latest blow to the president’s efforts to circumvent congressional inaction on immigration by using the power of his office to reshape the way immigration laws are enforced.
But the ruling may have come just soon enough to allow Mr. Obama’s lawyers to appeal the decision to the Supreme Court for consideration next year. Administration officials are hoping that the Supreme Court will overturn the lower-court rulings and let the president carry out his immigration program.
Patrick Rodenbush, a spokesman for the Justice Department, said the administration would seek to resolve the litigation quickly so immigration authorities could prioritize “the removal of the worst offenders, not people who have long ties to the United States and who are raising American children.”
Lawyers for the administration had been expecting the Fifth Circuit ruling to go against the president, partly because of the high number of judges in that circuit appointed by Republican presidents.
Mr. Obama announced last November that he would use his executive authority to effectively stop deporting the undocumented parents of American children. That program — known as Deferred Action for Parents of Americans — would also allow the parents to work legally in the United States.
Before the effort began, it was blocked in February by a Federal District Court judge in Texas, who ruled that allowing millions of illegal immigrants to remain lawfully in the United States would prove costly to the State of Texas, the lead plaintiff in the case. The judge also said the government had not followed the proper procedures for enacting the new immigration rules.
Writing for the two judges in the majority, Judge Jerry E. Smith found that Texas had established that it was in a strong legal position to bring the lawsuit because it would be harmed by new costs for issuing driver’s licenses to immigrants. He also found that the program would undercut the will of Congress.
“Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states,” Judge Smith wrote. He rejected the administration’s argument that the program was just an expansion of an immigration enforcement policy intended to make efficient use of limited resources.
Ken Paxton, the Texas attorney general, hailed the ruling in a statement. “Today, the Fifth Circuit asserted that the separation of powers remains the law of the land, and the president must follow the rule of law, just like everybody else,” he said. “Texas, leading a charge of 26 states, has secured an important victory to put a halt to the president’s lawlessness.”
In the last several weeks, administration officials and other supporters of the immigration actions had expressed frustration that the appeals court had taken so long to rule. If the Fifth Circuit court had waited too long to allow an appeal to the Supreme Court, Mr. Obama’s hopes of carrying out his program before he leaves office in 2017 would have all but ended. As it stands, if the Supreme Court overturns the lower-court rulings, the administration would have only a few months to begin signing people up.
Marielena Hincapié, the executive director of the National Immigration Law Center, said that while the appeals court ruling might be seen as another defeat for her cause, “the silver lining is that this is just in the nick of time for the administration to go to the Supreme Court.”
Mr. Obama has asserted that the immigration program would merely direct federal agents not to enforce deportation laws against a certain group of people. But the appeals court suggested that the president had exceeded his authority by using the program to grant benefits without a congressional mandate.
In a blunt dissent, Judge Carolyn King said the two other judges, as well as Judge Andrew S. Hanen, the District Court judge, had misstated the basic facts of the case. She accused her colleagues of basing their decisions on “conjecture, intuition or preconception.
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