By Joe Guzzardi
May 27, 2015
The 5th Circuit Court of Appeals’ rejection of the Obama administration’s request to lift Texas Federal Judge Andrew Hanen’s temporary injunction on the president’s unilateral executive action amnesty represents a triumph for the 26 states who filed the suit, the Constitution and, in the words of Texas Attorney General Ken Paxton “a victory for those committed to preserving the rule of law in America” in the fight against President Obama’s “brazen lawlessness.”
The court’s decision could signal the end of Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) that would grant work permits, social security numbers, earned income tax credits and employment authorization documents to about 5 million unlawful immigrants. Texas also claimed that DAPA violated Obama’s constitutional duty to “take care that the laws be faithfully executed.”
The circuit court also denied the appeal to limit the scope of Judge Hanen’s injunction to Texas only, and allow DAPA go forward in the other states. According to the court, partial implementation undermines the constitutional imperative of “a uniform Rule of Naturalization” and Congress’ instruction that “the immigration laws of the United States should be enforced vigorously and uniformly.” State-by-state application would detract from the Congress’ “integrated scheme of regulation.” Additionally, a partial injunction would likely be ineffective since DAPA beneficiaries are free to move between states.
In its 2-1 decision, the court analyzed four factors including where the public interest lies. In a bitter defeat for Obama, a Harvard Law School graduate who taught at Columbia University, the administration’s Department of Justice legal team couldn’t make its case that the district court had abused its discretion when it issued the preliminary injunction.
Judge Jerry Smith’s 70-page opinion found that Texas had shown it would incur significant costs in issuing driver’s licenses and other benefits to illegal immigrants. The opinion concluded that the court “could not affirm intervention and judicial fiat ordering what Congress has never mandated.” Two courts have now ruled that Obama probably broke the law when he acted unilaterally on immigration, without going through Congress and without following the Administrative Procedure Act’s requirement for a period of notice and comment for rulemaking.
Critics and advocates alike speculate that time might run out on Obama’s second term before the court process could run its course. Over the short-term, the White House will likely appeal to the Supreme Court, a time-consuming process. Because he is the Supreme Court Justice who hears emergency appeals from the 5th Circuit, conservative Andrew Scalia would be the defendant’s first hurdle. Legal experts anticipate that Justice Scalia would refer it to the full court which already has a packed calendar with more than a dozen volatile key cases pending including same-sex marriage, subsidized health care, and race bias in housing.
While the circuit court’s decision is officially a set-back for Obama and immigration advocates, unofficially, the status quo remains intact. Illegal aliens will not get federal work authorization, but they didn’t have it before DAPA, so that policy is unchanged.
And, consistent with the pattern over the last several years, aliens are highly unlikely to be deported. Former Immigration and Customs Enforcement acting director John Sandweg said that less than one percent of the alien population who don’t commit felonies are likely to be removed from the interior. Finally, Obama’s 2012 deferred action for childhood arrivals is still in place, and the Department of Homeland Security is actively soliciting new sign ups.
Nevertheless, the circuit court ruling represents a victory for Americans who want sensible immigration laws, and not unilaterally created Executive Branch mandates for the sole purpose of appeasing immigrant advocacy groups at citizens’ expense.
Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]