By Joe Guzzardi
June 1, 2015
Why did the Fifth Circuit Court of Appeals reject President Obama’s lawyers’ request to stay the Texas district court’s injunction against Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)? The answer depends on which lawyers’ opinions you believe.
Lawyers sympathetic to the White House’s view that about 5 million potential DAPA recipients should get work permits, social security numbers, and earned income tax credits point to three contributing factors that led to its downfall: 1) an intense dislike of President Obama among the Republican governors who brought the suit that motivated them to prevail, 2) the good fortune of the Texas-led coalition when it found District Court Judge Andrew Hanen who had been openly critical of Obama’s immigration policies to hear the case, and 3) more good luck when the Republican-majority Fifth Circuit Court panel ruled 2-1 against the administration.
On more technical grounds, pro-immigration lawyers reluctantly agree that Department of Justice erred when it failed to publish, pursuant to the Administrative Procedures Act, DAPA’s details and the DOJ also violated the Constitution’s Article II, Section 3 “take care” clause which requires that the president must faithfully adhere to the laws as written. Critics fault the administration for choosing DOJ lawyers and not experienced immigration litigators to represent the White House.
But, in the end, Texas held the winning hand when it proved that it had standing to bring its law suit and would suffer dire consequences and direct injury if DAPA went forward. Specifically, Texas demonstrated that it would have to issue driver’s licenses to up to 500,000 immigrants unlawfully residing in the Lone Star State. Disregarding the theory that the state-incurred losses could be recovered through increased application fees, the court followed a previous Fifth Circuit decision which held that forcing a state to choose between incurring costs or changing a law, like one that administers the state driver’s license program, is an unfair ultimatum and an injury in itself. The court did not consider other obvious costs Texas would be forced to absorb like education, welfare, and incarceration.
For Texas, the win is particularly sweet because for years the Obama administration has blocked states like Arizona and Alabama from passing laws to deter illegal immigration on the grounds that the federal government consistently refuses to enforce immigration laws.
In something of a surprise, the Obama administration announced that it would not immediately appeal to the Supreme Court, but would instead return to the Fifth Circuit to argue DAPA on its perceived merits and legality. The outcome is uncertain. The three judges selected for the next panel will be chosen at random from 15 active and seven senior members. Of the 22 total, 15 are considered reliably conservative, but that may not guarantee success for Texas.
The clock is ticking and may run out on the White House. If the administration wins the next round, Texas will appeal for a full panel from the Fifth Circuit, and not just a random sampling, to hear the case. Should Texas win, the White House will have no choice but to go to the Supreme Court.
These various appeals are likely to extend beyond the 2016 election which means candidates will have ample opportunity to campaign on an immigration enforcement platform that focuses on the consequences of Obama’s open borders legacy—job loss, overpopulation, and the erosion of the historic American nation.
Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]