Obama Loses Second Bid to Implement Overhaul of Immigration

Bloomberg

By Laurel Brubaker Calkins

May 26, 2015

Obama Loses Second Bid to Implement Overhaul of Immigration

President Barack Obama’s bid to make overhauling immigration policy a second-term victory was dealt a serious blow as federal judges ruled the effort must remain on hold while 26 states sue to overturn it.

Obama’s executive action, which would allow 5 million undocumented immigrants to remain in the country, must be delayed until the lawsuit is resolved, the U.S. Court of Appeals in New Orleans ruled. The case has drawn sometimes furious opposition from members of Congress, and more than a few presidential contenders.

For years, Congress has been unable to agree on a revised law to address an estimated 11 million undocumented immigrants in the U.S. Obama said he acted because the House has refused to take up a bipartisan measure passed by the Senate in 2013 that would create a path to citizenship for many of those immigrants.

To qualify under his deferral program, undocumented immigrants must have been in the U.S. for at least five years and have a child who is a citizen, or have been brought here as children themselves. They must also pass a criminal background check.

2-1 Decision

The appeals court ruled Tuesday in a 2-1 decision that the federal government isn’t likely to win the appeal. It refused to lift a federal judge’s injunction banning the changes from taking effect before the litigation is resolved.

The Obama administration had no immediate comment on the ruling.

The majority of the court disagreed with the administration’s argument that the states didn’t have a legal right to challenge the policy.

Texas, in particular, the judges said would be forced to spend millions of dollars providing drivers’ licenses and other permits to undocumented immigrants.

By providing the protected immigrants with eligibility for federal and state benefits, the administration commits actions judges can review, wrote Judge Jerry Smith, an appointee of President Ronald Reagan, a Republican. Judge Jennifer Elrod, an appointee of Republican President George W. Bush agreed with Smith.

The issue should be left to political branches, not courts, to decide, Judge Stephen Higginson, an Obama appointee, wrote in a dissent from the majority.

Political Nature

“The political nature of this dispute is clear,” he said. “The order in which non-citizens without documentation must be removed from the United States must be decided, presently is being decided, and always has been decided by the federal branches.”

Republican lawmakers have seized on the executive actions, accusing Obama of ignoring the Constitution and making the move to shore up Latino support for Democrats in 2016.

The Senate confirmation of Loretta Lynch as attorney general was held up in part over opposition to the initiative, and House Republicans threatened to withhold funds for the Department of Homeland Security over it, and passed a bill just before funding was set to expire.

Texas Governor Greg Abbott, who filed the challenge, and the White House have vowed to take the fight to the U.S. Supreme Court. That might extend the litigation into next year.

“If the Supreme Court doesn’t take it up until June 2016, that puts us right in the middle of the presidential election,” Michael Dorf, a Cornell University law professor following the case, said in an interview before the decision.

Presidential Contenders

Texas is home to Senator Ted Cruz, a Republican presidential candidate, and former Governor Rick Perry, a potential contender. The states that joined the lawsuit include Wisconsin, whose Governor Scott Walker is a possible candidate, and Florida, where U.S. Senator Marco Rubio has declared his candidacy. Former Florida Governor Jeb Bush hasn’t formally entered the race.

Cruz, Rubio and New Jersey Governor Chris Christie, another possible candidate for the party’s nomination, were among the more than 100 senators, representatives and governors who urged the appeals court to block the law.

Program Halted

The administration previously failed to persuade U.S. District Judge Andrew Hanen in Brownsville, Texas, to suspend his order blocking the program. Hanen ordered the halt in February, hours before federal officials were to start processing applications to spare some immigrants from deportation and provide them with work permits and other benefits.

Texas and the other states contend Obama overstepped his authority because only Congress can authorize spending millions of dollars on services for people in the U.S. illegally.

The Obama administration argued it has the authority to set priorities for deporting undocumented immigrants, and that it is focusing Homeland Security agency resources on deporting violent criminals. The White House denies it skipped federal rule-making procedures, calling the initiative “guidance” that immigration officials can follow at their discretion.

Hanen concluded the White House failed to let the public review and comment on the plan as federal rules require. He put off a decision on the constitutional issues regarding the limits of the president’s power until trial.

The appeal 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