Outside the Beltway

Obama Administration’s Deferred Deportation Plan Suffers Another Legal Setback

The President's plan to give deportation relief to millions of illegal immigrants has hit another legal snag.

Doug Mataconis · Tuesday, May 26, 2015 · 14 comments

The Obama Administration suffered another setback in the implementation of the deferred deportation program that the President announced last November when the Fifth Circuit Court of Appeals declined to lift a stay that had imposed on the program by a Federal District Court Judge currently presiding over a lawsuit brought by Texas and a number of other states:

A federal appeals court on Tuesday denied the Obama administration’s request to lift a hold on the president’s executive actions on immigration, which would have granted protection from deportation as well as work permits to millions of immigrants in the country illegally.

Two of three judges on a panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, left in place an injunction by a Federal District Court judge in Brownsville, Tex. The ruling comes in a lawsuit by 26 states against actions President Obamatook in November. Many of the initiatives were scheduled to take effect this month.

The appeals court found that Texas and the other states had sufficient legal grounds to bring the lawsuit and that the administration had not shown that it would be harmed if the injunction remained in the place and the programs were further delayed.

The appeals judges also denied a request by the administration to limit the injunction to the states bringing the lawsuit. The ruling is a second setback for programs the president hoped would be a major piece of his legacy, raising new uncertainty about whether they will take effect before the end of his term and casting doubts on the confidence of administration lawyers that their case was very strong.

Texas is leading the states in the lawsuit, which was filed in December. On Feb. 16, Judge Andrew S. Hanen, of Federal District Court in Brownsville imposed a preliminary injunction on the programs while he ruled on the constitutional issues in the suit.

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the 70-page opinion, two judges wrote that Texas had shown it would incur significant costs in issuing driver’s licenses to illegal immigrants who would be allowed to stay in the country. The judges, Jerry E. Smith and Jennifer Elrod, also rejected the administration’s argument that the programs could not be reviewed by the courts because they stemmed from policy decisions by the president on how to enforce the immigration laws.

Judge Stephen A. Higginson disagreed. He wrote that the administration was “adhering to the law, not derogating from it.”

But the decision by the Fifth Circuit to leave the Texas judge’s injunction in place does not necessarily mean the Obama administration will lose the larger case. Legal experts said it was still possible that the administration could win the overall appeal.

Stephen H. Legomsky, a professor of immigration law at Washington University, said the appeals court panel had denied the administration’s request for an emergency stay “because it feels that a delay would cause no irreparable harm.” But he said, “The panel that ultimately decides the appeal could well agree with the government’s position and reverse Judge Hanen’s injunction.” Professor Legomsky, formerly the top lawyer for the federal immigration services agency, has submitted documents to the court supporting the administration.

Aside from the emergency stay, the Fifth Circuit is separately considering the administration’s appeal of the injunction, a process that takes more time. The Fifth Circuit will hear oral arguments on the appeal the week of July 6. The appeal may be heard by a different panel of three judges than those who ruled on lifting the injunction.

Legal analysts and White House officials point to two other recent federal court rulings in similar cases that favored the administration. In December a federal judge in Washington dismissed a lawsuit against the president’s actions by Joe Arpaio, the outspoken sheriff of Maricopa County, Ariz. The judge said the sheriff’s dispute with the administration was political, not legal.

A potentially more significant decision came on April 7 from judges on the Fifth Circuit. They dismissed a lawsuit by federal immigration agents against deportation protections Mr. Obama gave in 2012 to young undocumented immigrants who came to the United States as children. The president used the same legal justification for that program as he did for the recent initiatives.

The appeals court found that the state in that lawsuit, Mississippi, had failed to show that it would face any burdensome costs because of the 2012 program. The court also agreed with the administration’s argument that the secretary of Homeland Security has broad authority to decide how to enforce the immigration laws.

Lyle Denniston has more:

The majority rejected the government’s arguments that the states did not have a legal basis for suing (that is, they lacked “standing”), that the procedure it used to create the program was exempt from court review, that it need not have sought public input before adopting the program, and that the judge should not have blocked enforcement all across the country.

Refusing to lift any part of the delay order, the decision said that a partial bar to enforcement would result in a “patchwork” of policy among the states, and would contradict Congress’s general insistence that immigration laws be enforced uniformly and vigorously, all across the country.   Moreover, it said, undocumented aliens would be able to get around a partial delay of the policy, by moving from one state to another.   The government had asked the Fifth Circuit to limit the delay order to Texas or, at most, to the twenty-six states that had sued.

While the new decision went strongly against the government, there was one part of it that gave the government a small measure of relief.  The Fifth Circuit did not base its conclusion that the states were free to sue on one argument that the trial judge had used as an alternative — that is, that the states were free to complain in court if the government had “abdicated” a duty to enforce the laws that could only be enforced at the national level.

The panel majority did not reject that “standing” argument, but it found that it did not have to reach it because it concluded that at least one state — Texas — had a right to sue because it could be faced with significant costs in administering a driver’s license program for those who would newly become eligible for such permits.  As long as one state is free to sue, that would be sufficient for the group, the panel noted.

The ruling was written by Circuit Judge Jerry E. Smith, and was joined by Circuit Judge Jennifer Walker Elrod.  Circuit Judge Stephen A. Higginson dissented, arguing that all that the government had done in adopting the new policy was to issue an “internal executive enforcement guideline.”  The dissenting judge said that the Supreme Court had made clear in a 1985 ruling, and in other decisions, that a federal agency’s decision not to prosecute or enforce a policy or program was “a decision generally committed to an agency’s absolute discretion.”

Although the panel majority did not make any ruling on how the case should ultimately come out on the legality of the deferred deportation policy, its opinion made several critical remarks.  If all that the program involved was a decision on which specific undocumented aliens might be allowed to stay in the U.S., that would be a different case, it said.  But the policy actually would create a brand new form of “legal presence” in the country, on a nationwide, and class-wide basis, and not just the exercise of case-by-case discretion, according to the opinion.  “Although prosecutorial discretion is broad,” it commented, “it is not unfettered.”

It’s important to note that this is not a final ruling on the merits of the state’s lawsuit, nor is it even a definitive statement that the DAPA program itself is not authorized by the law. It is, instead, a finding that there are no grounds to impose either a total or partial stay on the District Court’s ruling here, which means that the program cannot be implemented until that case is decided on the merits at the very earliest. The Federal Government does have the option of appealing this matter, of course, to either the full Fifth Circuit or to the Supreme Court but it’s not clear that either avenue is one that will be very fruitful. The Fifth Circuit as a whole has roughly the same ideological balance as the three judge panel that decided this case, so it would seem unlikely that they’d have much luck going that route. This is made more unlikely by the fact that the court found that the Administration was unlikely to succeed on the merits, which is one of the typical grounds that a court looks at when examining a request for a stay or an injunction. If one of the Fifth Circuit’s own panels reached this conclusion, it’s not very likely that the full court is going to find any differently. Alternatively, the Obama Administration could go straight to the Supreme Court for relief, but the Justices have typically been reluctant to overturn lower court stays while that court is still ruling on the merits of the case itself. Additionally, the fact that the Federal Government’s separate appeal of the District Court stay is set to be argued before the Fifth Circuit very shortly makes it unlikely that the Justices would want to rule on the matter before the Circuit Court has had a chance to rule on that issue as well.

Another point to note is that, at this stage of the case, the most important arguments against the President’s deferred deportation plan have not been ruled on by any Court. The lawsuit that Texas and the other states filed essentially makes a variety of different arguments. Most significantly, it argues that the Obama Administration acted unconstitutionally because the deferred deportation plan was not approved by Congress. In addition to that argument, though, the suit also argues that the plan is illegal under federal law because the agencies that will implement it do not have the legal authority to take the steps the President has ordered and that the plan is illegal because the Administration did not follow the proper procedures under the Administrative Procedures Act in implementing it. Right now, it’s only that last claim under the APA that is at issue and it is the claim that formed the basis for the injunction initially granted by the District Court. The remaining claims are still being litigated in that court and it’s unclear how long it will be before there is is final ruling on those issues. Nonetheless, this is another fairly big setback for the government and potentially means that the DAPA program that the President announced in November may not be implemented until this matter has been fully heard and litigated all the way up to the Supreme Court, and that may not happen for another year or longer.

Here’s the opinion:

Texas Et Al v. U.S. Et Al by Doug Mataconis