Appeals Court Challenges Executive Amnesty

• Last week, the Fifth Circuit Court of Appeals heard arguments on whether the president’s executive amnesty should be allowed to go forward.

• Until the circuit court resolves this case, the president’s program is on hold.

• Ultimately, it seems likely that the U.S. Supreme Court will determine whether the president’s amnesty program will be implemented.

Last week, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments on whether a federal district court was correct in halting the president’s executive amnesty plans. At issue in the case is whether the president can unilaterally expand the number of illegal immigrants – estimated to be more than four million – who would not be subject to deportation and would be granted work authorization. The circuit court panel appeared to be skeptical of the administration’s authority to execute these plans.

“So the [Homeland Security] secretary has boundless discretion to give work authorization to whomever [he] wants, and it is not constrained by congressional law?”

 – Judge Jennifer Elrod, questioning the administration, 7/10/15

Two of the three judges on the panel hearing last week’s argument previously had ruled against the Obama administration. In late May, the circuit court denied the administration’s request to proceed with the president’s executive amnesty programs. Judges Jerry Smith and Jennifer Elrod earlier concluded that the Obama administration had not made a strong showing that it is likely to succeed on the merits. If the judges reach the same conclusion again, it would imperil the president’s program.

The Implications of King v. Burwell

The Supreme Court’s decision in King v. Burwell may forecast further problems for the administration’s deferred action program. In King, Chief Justice Roberts held that the rules implemented by the Obama administration’s IRS did not require it to follow the traditional standard of review for deferring to an agency’s decision-making. Instead the court considered the “deep ‘economic and political significance’” and determined that “had Congress wished to assign [the] question to an agency, it surely would have done so expressly.” In reviewing the Obamacare subsidies in a manner less deferential to the agency, the court seemed to place limits on the executive branch’s discretion where Congress has not expressly conferred authority.

A Supreme Court that refuses to defer to the executive in matters of “deep economic and political significance” might be a future problem for the president’s immigration programs. In the case of the executive amnesty program, the administration seeks to defer deportation of millions of illegal immigrants under a broad interpretation of prosecutorial discretion. The work authorization associated with the deferred actions would have deep economic implications. Questions of such economic and political enormity, the Supreme Court has held, are not for the executive branch alone to decide.

President Obama said more than 22 times that he did not have legal authority to bypass Congress and rewrite immigration laws. The federal judiciary seems to agree with the president’s initial assessment of how our laws work.