Obama’s Immigration Overhaul, Halted by Judge, Comes Before Appeals Court

New York Times

By Michael Shear

April 17, 2015

Obama’s Immigration Overhaul, Halted by Judge, Comes Before Appeals Court 

Justice Department lawyers on Friday will urge the federal appeals court here to let President Obama immediately move forward with his overhaul of the nation’s immigration and deportation policies, despite a legal challenge by more than half of the states.

A federal judge in February angrily ordered an indefinite halt to the president’s assertion of executive authority that would shield up to five million undocumented immigrants from deportation and provide work permits to many of them. The judge, in Brownsville, Tex., said Mr. Obama had abused his power and violated administrative procedures.

If the government lawyers fail in their bid to reverse the judge’s preliminary injunction, Mr. Obama’s immigration efforts could remain in legal limbo for months, raising doubts about whether the policies will be carried out before the president leaves office.

The rare hearing before a three-judge panel will allow lawyers for both sides to make their cases publicly. In most similar cases, legal experts said, appeals courts make decisions based solely on written briefs. In this high-profile case, however, each side will get an hour to argue — twice the amount of time generally provided to lawyers in Supreme Court cases.

Lawyers for Mr. Obama are expected to insist that the states have no right to challenge the executive actions because they will suffer no direct harm if the moves are carried out. They will ask the appeals court to lift the preliminary injunction while the legal case proceeds.

Mr. Obama declared in November that he was operating within his rights to take unilateral action in the face of years of refusals by congressional Republicans to change immigration laws. Advocates for Hispanics hailed the president’s move as a legacy-making effort to address a public policy crisis.

“The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican president and every Democratic president for the past half-century,” Mr. Obama said in a speech to the nation on Nov. 20.

But Republicans assailed the executive actions as the latest power grab by a president bent on circumventing Congress. A legal challenge by 26 states quickly followed.

In its brief to the United States Court of Appeals for the Fifth Circuit, in New Orleans, the Justice Department wrote that the preliminary injunction by the Texas judge, Andrew S. Hanen, was “unprecedented and wrong.” In allowing the lawsuit to move forward, the government lawyers said, the judge had accepted a legal theory “that would radically expand the ability of states to intrude into this uniquely federal domain.”

The challenge by the states is being led by Ken Paxton, the Texas attorney general, who has said that the administration is taking “rogue actions” that must be stopped. In a statement earlier this year, Mr. Paxton said Mr. Obama’s executive actions “represent a blatant case of overreach and clear abuse of power.”

In briefs to the court, Mr. Paxton has argued that the president’s actions would cost the State of Texas money because workers who acquire legal status would qualify to get driver’s licenses under Texas law. That, Mr. Paxton says, gives the state standing to sue.

Officials from the 26 states also accused the president of failing to abide by requirements under the Administrative Procedure Act when changing federal rules. They are urging the court to block the executive actions until the legal challenge has run its course.

“The preliminary injunction preserves the status quo, which has existed for decades,” the lawyers for the states wrote in their latest brief.

If the appeals court lifts Judge Hanen’s injunction, administration officials could quickly move to carry out the executive actions. That would mean that millions of undocumented immigrants could soon begin applying for protection under a program that would allow them to remain in the country legally but would not provide a path to citizenship.

Opponents could still seek to block the actions by appealing to the Supreme Court. And even if the program moves ahead, the underlying legal challenge could still continue in Texas. Briefs on the merits of the challenge are due in mid-May, and an initial hearing could come in June.

For more information, go to:  www.beverlyhillsimmigrationlaw.com