Executive Amnesty Goes to Court

• The Fifth Circuit Court of Appeals will determine whether the president’s unilateral changes to immigration law can go forward.
• The appellate court’s three judge panel appears ready to reject the Obama administration’s request to undo a lower court decision keeping its injunction of executive amnesty in place.
• It will most likely be the Supreme Court that will ultimately decide whether executive amnesty will move ahead.

On April 17, the U.S. Court of Appeals for the Fifth Circuit heard more than two hours of argument assessing whether a federal district court was correct in denying an Obama administration request to proceed with the president’ executive amnesty. At issue is whether the administration will be able to proceed with its expansion of the eligible population of immigrants – estimated to be more than four million – who would not be subject to deportation and would be granted work authorization.

After the president announced his changes to immigration law in November, 26 states challenged the administration in court. In February, a federal district court in Texas issued a preliminary injunction blocking the president’s actions. On April 7, the district court denied a request by the Obama administration to lift the injunction and allow the president’s executive amnesty to proceed. The next step in the case was for the Fifth Circuit to review the district court’s refusal to stay its injunction. Last week’s arguments focused on whether the stay was appropriate. The Fifth Circuit’s three judge panel, consisting of Judges Jerry Smith (a Reagan appointee), Jennifer Elrod (a G.W. Bush appointee), and Stephen Higginson (an Obama appointee), is not ruling on the underlying merits of the case. At this stage, the panel is considering whether the states are entitled to proceed with their case. A decision is expected within the next month.

The administration’s appeal of the district court’s February decision – whether the district court was correct in halting the president’s immigration actions – is expected to be argued and decided later, likely by a different panel of the Fifth Circuit. Briefs on the merits of this challenge are due in May, and a hearing could be expected in June.

The president’s action “would be one of the largest changes in immigration policy in our nation’s history ... Any injury that the executive could show would not outweigh the irreversible harm of changing the status quo by allowing [it] to go into effect.”  

                                          --Texas Solicitor General Scott Keller, 4/17/15

The Senate’s Check on the President’s Action

While the Fifth Circuit considers the legal arguments, the Senate has an opportunity to address the president’s re-writing of immigration law when it considers the nomination of Loretta Lynch to serve as U.S. Attorney General. During her confirmation hearing, Ms. Lynch failed to acknowledge what limits might be placed on the president’s actions. She identified no restrictions on his expansion of prosecutorial discretion and his authority to change immigration law without Congress’ involvement.