The Hill (Blog)
By Raul Reyes
November 17, 2015
The other shoe has dropped. Ending months of speculation, last week a panel of the Fifth Circuit Court of Appeals issued its opinion on President Obama's executive action on immigration. The court ruled that the president could not move forward with his plan to provide 4 million undocumented immigrants with deportation relief and work permits. This ruling comes nearly a year after the president announced his immigration proposals last November, and marks the latest salvo in the ongoing legal battle between 26 states and the Obama administration.
Yet this decision was not unexpected, and all is not lost. Although the Fifth Circuit slow-walked the case, the panel's ruling comes in time for the Obama administration to move on to the Supreme Court. Despite the politicized nature of the case, the president's executive action is still legally and morally sound.
The only real question about the Fifth Circuit Court was when it would rule, not how. That's because two out of the three judges on the panel had already ruled against the president's executive action. In May, they denied a request from the Obama administration for an emergency stay (temporary stop) of the injunction blocking the president's immigration proposals. Back then, they wrote, "Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction." So while this latest ruling is another setback, it is no surprise.
It is to their discredit that Fifth Circuit Court majority apparently attempted to run down the clock, taking as long as possible to issue their ruling. The website for the Fifth Circuit states that, "the court's goal is to issue an opinion generally within 60 days after argument or submission." But final arguments were heard July 10, and this was a case in which the court agreed to fast-track the appeal. Indeed, the panel's dissenting judge, Carolyn King, noted "the extended delay that has occurred in deciding this 'expedited' appeal." She added that there was "no justification" for such a delay. The only silver lining is that there is still time to move on to the Supreme Court this term; the Obama administration has already announced that it will ask the high court to rule on the president's plan by next year.
When it does, King's dissent will provide a road map for a reversal of the Fifth Circuit Court ruling. "Congress has made clear that those decisions (on immigration enforcement prioritization) are to be made by the Department of Homeland Security," she writes, "not by Congress itself — and certainly not by the courts." King points out that if the majority's position were to be upheld, it would allow nearly unlimited intrusion by the states into federal law, a potentially destructive and mind-boggling outcome. She rightfully characterizes Deferred Action proposals, such as the plans at stake here, as "quintessential exercises of prosecutorial discretion" that are not subject to judicial review. She sums up this case as a broader policy dispute that is "best resolved not by judicial fiat but via the political process."
Once this decision reaches the Supreme Court, it will almost certainly be reversed. U.S. presidents have been taking executive action on immigration as far back as Eisenhower. The Supreme Court has consistently upheld federal authority over immigration matters, most recently in United States v. Arizona (2012). The Supreme Court can look to a decision by the Fifth Circuit Court itself in April, which threw out a suit brought against the government by a group of disgruntled immigration agents based on lack of standing. Or it can weigh the expert opinions of over 100 leading law professors, who in 2014 signed a letter detailing the legality of executive action.
Sure, the decision last week is a setback for the Obama administration. But partisanship aside, that's nothing to cheer about. The court's decision does absolutely nothing about our illegal immigration problem; the ongoing legal obstructionism just means that our immigration system will remain dysfunctional. It means that our government will continue to waste resources trying to keep track of 11 million undocumented people, rather than focusing on criminals and gang members. It means that our undocumented population will continue to exist in a legal limbo, which is a net loss to our economy. And consider that when the Supreme Court rules on the legality of Obama's immigration plans, it will likely do so in June — just in time to potentially mobilize Latino voters against the GOP in the presidential election.
The Fifth Circuit Court of Appeals ruling on executive action was a cynical, politically motivated decision. It represents a flawed abuse of judicial authority and will not stand.
Reyes is an attorney and columnist in New York City.
For more information, go to: www.beverlyhillsimmigrationlaw.com