By Laurel Brubaker Calkins
November 9, 2015
President Barack Obama’s plan to shield more than 5 million undocumented immigrants from deportation before he leaves office was dealt another blow by an appeals court’s refusal to let the program begin while 26 states fight to derail it.
The U.S. Court of Appeals in New Orleans said a federal judge’s ruling blocking the plan was “impressive and thorough” and that states led by Texas would probably win the lawsuit ultimately. The judge in Brownsville, Texas, ruled that the White House had skipped required federal policy making steps and halted the program in February, hours before it was to begin taking applications.
The White House may take the dispute to the U.S. Supreme Court, where further delays would likely thrust immigration policy further onto center stage in the 2016 presidential contest. Newly elected Speaker Paul Ryan has said House Republicans won’t be offering legislation on immigration reform, calling Obama an unreliable partner because he had attempted to bypass Congress with executive orders.
Monday’s appeals court ruling “has pretty effectively closed down any meaningful chance of immigration reform before Obama leaves office,” Richard Murray, a pollster and political science professor at the University of Houston, said in a phone interview. If the administration appeals, the Supreme Court will likely order the status quo maintained as the court fight continues, out of reluctance to “inject itself” into such a divisive issue, “especially during the final year of a presidential term,” Murray said.
If the high court’s four Democratic appointees vote to take the case, the decision would come in June, “just as the political parties are settling in on their candidates,” Murray said. “Immigration has already become a huge issue; I think it will be a wedge issue in the presidential campaign.”
Obama’s initiative targets undocumented immigrants who have been in the U.S. for at least five years, can pass a criminal background check, and have a child who is an American citizen. Obama announced the unilateral policy shift in November 2014, after he failed to persuade the Republican-controlled Congress to approve changes he said would bring undocumented immigrants “out of the shadows” into productive society.
The Obama administration strongly disagrees with the decision and is considering how to proceed, according to a White House statement.
“The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws,” according to the statement. “This lawsuit is preventing people who have been part of our communities for years from working on the books, contributing to our economy by paying taxes on that work, and being held accountable.”
The majority of states suing to block the program criticize it as “executive amnesty,” which may cause people who are in the country illegally to receive benefits such as Medicaid and Social Security. These states complain the president overstepped his constitutional authority by altering national immigration policy without Congressional approval.
More than a dozen states have sided with the White House, arguing that letting undocumented immigrants work and pay taxes in the U.S. would generate revenue exceeding the states’ cost of providing additional services to them.
Monday’s decision was the third time the courts have agreed with the states’ argument that the public should have been allowed to review and comment on the policy before the White House rolled it out.
In the 2-to-1 decision, the majority ruled the states could sue because they face “a concrete threatened injury in the form of millions of dollars of losses” if they’re forced to provide services, such as drivers’ licenses, to undocumented immigrants. While Obama’s program itself doesn’t convey federal benefits, the work permits it provides could lead to Social Security, Medicaid and tax credits, which may be beyond the president’s power to grant, the court’s majority ruled.
U.S. Circuit Judge Carolyn King, nominated by Democratic President Jimmy Carter and in contrast to the panel’s two Republican appointees, agreed with the administration that immigration officials should focus their limited resources on removing criminals rather than on deporting law-abiding immigrants and breaking up families. In her dissenting opinion, King said states don’t have the power to question Obama’s immigration-policy decisions.
The Obama administration wants to "resolve the immigration litigation as quickly as possible," so the Homeland Security Department can "bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children," Patrick Rodenbush, a Justice Department spokesman, said in an e-mail. "It is reviewing the opinion to determine how best to proceed to accomplish that goal."
The appeals court case is Texas v. U.S., 15-40238, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The lower-court case is Texas v. U.S., 1:14-00254, U.S. District Court, Southern District of Texas (Brownsville).
For more information, go to: www.beverlyhillsimmigrationlaw.com