Executive Amnesty Put on Hold
- The Fifth Circuit Court of Appeals last Tuesday decided to halt the president’s unilateral changes to immigration law for the foreseeable future.
- The appellate court rejected the Obama administration’s request to undo a lower court decision, keeping its injunction of executive amnesty in place.
- While the Fifth Circuit and other courts will be taking up other aspects of the case over coming months, it will most likely be the Supreme Court that will ultimately decide whether executive amnesty stands.
Last week, the U.S. Court of Appeals for the Fifth Circuit decided, by a 2-1 vote, that a federal district court was correct in denying an Obama administration request to proceed with the president’s executive amnesty programs. This decision stops the Obama administration’s plans to expand 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.
“The United States has not made a strong showing that it is likely to succeed on the merits.”
– Fifth Circuit Court of Appeals, 5/26/15
History of the Case
For years, President Obama said he had no authority to unilaterally change immigration law. Last November, he changed his mind and announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA). After these changes were announced, 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 stay the injunction pending appeal and allow the president’s executive amnesty to proceed.
The Decision
Two judges on the panel (Judges Jerry Smith, a Reagan appointee, and Jennifer Elrod, a George W. Bush appointee) decided that the district court was right to deny the request to stay the injunction pending appeal. Judge Stephen Higginson, an Obama appointee, dissented. The Obama administration said that it will not challenge this decision. Thus, until the merits of the injunction are resolved in court, the president’s immigration program is on hold for the foreseeable future.
In reaching its decision, the appellate court determined that Texas was injured by either side of a “forced choice”: incurring costs to accommodate the president’s program; or changing its laws. The court found that it is “the designation of lawful presence itself – the prerequisite for work authorization under DAPA – that causes Texas’s injury because a document showing legal presence makes one eligible for a driver’s license.” The court also determined that, although the state would not be directly regulated by DAPA, the program would impact at least 500,000 potential beneficiaries who live in Texas. Therefore, the programs would have a “direct and predictable” effect on the state’s driver’s license regime.
The president’s plan “is more than nonenforcement: It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.”
– Fifth Circuit Court of Appeals, 5/26/15
Going Forward
The administration’s appeal of the district court’s decision granting the injunction – whether the district court was correct in halting the president’s immigration actions – is scheduled for oral argument on July 10, 2015, by a different panel of the Fifth Circuit. Importantly, last week’s panel found that the Obama administration had failed to make a strong showing that it is likely to succeed on the merits of the case going forward. If this assessment is shared by other judges on the Fifth Circuit, it could imperil the president’s program. Ultimately, it seems likely that the U.S. Supreme Court will determine whether the president’s amnesty program will be implemented.
Upholding the Rule of Law
President Obama said more than 22 times that he did not have legal authority to bypass Congress and rewrite immigration laws. With last week’s decision, it appears more and more federal judges are agreeing with his first assessment of how our laws work. The circuit court’s decision not only upholds the rule of law, it reins in a president who has exceeded his constitutional authority.
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