By Joe Guzzardi
November 11, 2015
In a major setback for the White House but a victory for American workers, the New Orleans-based Fifth Circuit Court of Appeals ruled against President Obama’s appeal to reject a lower court decision that blocked his November 20 executive action. Obama’s amnesty would have given employment documents (EAD), benefits, and permission to reside legally but temporarily in the U.S. to nearly 5 million illegal immigrants. At the court decision’s core was the work permits issue.
Had the court ruled in favor of Obama’s deferred action for parents of citizens and legal permanent residents (DAPA), illegal immigrants would have been able to be legally seek employment and, as a result, be able to compete with Americans for better-paying jobs. Obama conspicuously omitted references to work permits when he announced DAPA, and left it out in all of his subsequent speeches that promoted DAPA. Department of Homeland Security, Justice Department officials, and Obama also neglected to point out that quasi-legal status work permit-holders would qualify for driver’s licenses, Medicaid and social security numbers in all 50 states.
The Fifth Circuit Court and the Texas Federal District court before it, however, ruled that the Executive Branch cannot grant affirmative benefits like work permits and welfare benefits without the statutory authority which requires notice-and-comment rule-making. Writing for the 2-1 majority, Judge Jerry E. Smith said only Congress has the power to rewrite the Immigration and Nationality Act: “The INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.”
Further, the court wrote that Obama’s action would affirmatively “confer lawful presence and associated benefits on a class of unlawfully present aliens.” Although the president’s action could be revoked at a later date, the court decided DAPA would trigger eligibility for federal benefits.
The Obama administration has been extraordinarily aggressive about doling out work permits beyond those issued to the more than one million legal immigrants who come each year plus an additional 750,000 annual guest workers. According to data from the U.S. Citizenship and Immigration Services, during the six-year span from 2009 to 2015, the administration has issued 7.4 million more work permits than Congressionally-set limits allow. The 7.4 million work permit total included 113,800 aliens who had received final deportation orders.
Work permits for illegal immigrants has been Obama’s goal since at least 2011. That year, the White House announced that it would review 300,000 deportation cases hoping to find reasons to allow them to stay and to reward them with employment authorization. Then-House Judiciary Committee Chairman Lamar Smith said that President Obama's amnesty only benefits illegal immigrants, not Americans, and is a magnet for fraud. He said “many illegal immigrants will falsely claim they came here as children and the federal government has no way to check whether their claims are true. And once these illegal immigrants are granted deferred action, they can then apply for a work permit, which the administration routinely grants 90 percent of the time.”
The circuit court’s ruling, however, does not affect the administration’s well established non-enforcement policies. During the last three years, deportations have declined 41 percent. Although the president claimed that immigration officials were ordered to focus on “felons, not families,” that promise has not been fulfilled. Through April 4, 2015, criminal deportations are down 30 percent from last year.
Immigration-rights activists will likely demand that the Obama administration take their cause to the Supreme Court. While there may not be enough time left in Obama’s presidency for such a challenge and while the Supreme Court may not want to hear it, the amnesty debate will resonate throughout the 2016 White House race.
Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]