Obama Administration Appeals Fifth Circuit Immigration Ruling To Supreme Court

The Obama Administration is asking the Supreme Court to review a ruling that kept a hold on last year's immigration execution action in place.

Supreme Court Justices 2

Just a week after the Fifth Circuit Court of Appeals handed the Obama Administration another defeat in the legal battle over the immigration relief plan that the President announced one year ago, a plan that has yet to actually be put into effect due to the injunctions put in place by the District Court Judge hearing the challenge to the plan and confirmed on appeal. Not surprisingly, the Administration has decided to ask the Supreme Court to review the ruling:

WASHINGTON — The Obama administration on Friday asked the Supreme Court to rescue the president’s overhaul of the nation’s immigration system.

Solicitor General Donald B. Verrilli Jr. urged the court to take prompt action to reverse an “unprecedented and momentous” appeals court ruling last week that blocked President Obama’s plan to let more than four million undocumented immigrants legally live and work in the United States.

“If left undisturbed,” Mr. Verrilli wrote, “that ruling will allow states to frustrate the federal government’s enforcement of the nation’s immigration laws.”

The case, United States v. Texas, concerns a November 2014 executive order by Mr. Obama that allowed parents of citizens or lawful permanent residents to apply for a program sparing them from deportation and allowing them to work.

“Without work authorization,” Mr. Verrilli wrote of the people eligible for the program, “they are more likely to work for employers who will hire them illegally, often at below-market wages, thereby hurting American workers and giving unscrupulous employers an unfair advantage.”

Almost immediately after Mr. Obama announced his executive action, Texas and 25 other states filed a lawsuit seeking to stop it. In February, Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., entered a preliminary injunction shutting down the program.

The government appealed, and on Nov. 9 a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans,affirmed the injunction.

Judge Jerry E. Smith, writing for the majority, said the states had standing to challenge the program, citing a 2007 Supreme Court decision that said Massachusetts and other states were entitled to sue the Environmental Protection Agency over its refusal to regulate motor vehicle emissions contributing to climate change.

Judge Smith said Texas would suffer a similarly direct and concrete injury in having to spend millions to provide drivers licenses to immigrants under the federal program.

Mr. Verrilli told the justices that Texas’s injury, such as it was, was self-inflicted, a product of its own decision to offer driver’s licenses to people lawfully in the United States. Decisions about driver’s licenses and related fees are generally up to individual states. He added that the appeals court’s standing theory would allow states to sue over all sorts of federal policy judgments.

“The consequences of the majority’s theory are particularly acute in a case, like this one,” he wrote, “where a state seeks to leverage its own policy choices to insert itself — and the federal courts — into discretionary immigration policy decisions that Congress and the Constitution have committed exclusively to the national government.”

Judge Hanen grounded his injunction on the administration’s failure to give notice and seek public comments on its new program. He found that notice and comment were required because the program was categorical notwithstanding the administration’s assertion that it required case-by-case determinations.

The appeals court affirmed that ruling and added a broader one. The program, it said, also exceeded Mr. Obama’s statutory authorization.

In dissent, Judge Carolyn Dineen King said the majority’s decision to reach and rule on that issue was at odds with “prudence and judicial economy.”

The administration told the justices that the injunction has had a “far-reaching and irreparable humanitarian impact.”

“It bars,” Mr. Verrilli wrote, “approximately four million parents — who have lived in this country for years, would pass a background check, are not priorities for removal, and have a son or daughter who is a U.S. citizen or lawful permanent resident — from requesting deferred action under” the program “and receiving authorization to work lawfully.”

Lyle Denniston comments:

One year after President Barack Obama took historic steps to overhaul immigration policy, his lawyers on Friday appealed to the Supreme Court to uphold his plan and let it go into effect.  It is currently stalled by lower court rulings finding that the president probably overstepped his powers in bypassing Congress to put off deportation for nearly five million undocumented immigrants.

The filing in United States v. Texas (docket 15-674) arrived just as Washington’s attention is focused on what the government should do about the immigration of refugees fleeing from war and terrorism in the Middle East.  The only link between that controversy and the deferred-deportation policy is that the Court in deciding that case could clarify how power over who may enter the country is divided between Congress and the executive branch.

The petition opened with a challenge to the right of state governments to go to court to challenge the policy choices of the president and his aides over who and when to send out of the country when they have entered illegally.  It added two other questions: was the new policy beyond the government’s authority, and did it have a duty to give the public a chance to comment on the policy before it was adopted?

The question of states’ “standing” to sue is a constitutional issue — under Article III — but the petition raised no separate question about the constitutionality of the policy.  The U.S. Court of Appeals for the Fifth Circuit had ruled that the twenty-six states that sued would be able ultimately to show that the president lacked the authority to adopt the policy — a violation of the Administrative Procedure Act.   The states had also raised a constitutional challenge to the policy, but the lower courts opted not to rule on it.

Because it is getting late in the Supreme Court’s current Term to begin a new case, the filing asked the Court to grant “immediate review,” because of the “broad importance” of the policy, the harm that delay could cause to “the many families affected,” and the “great and immediate significance” of implementing the details of the new approach.

Although the government did not ask the Court explicitly to put the case on an expedited schedule, it is likely that the case could be ready for the Court’s initial action — that is, the decision to grant or deny review — within a matter of weeks.  Ordinarily, a case must be accepted for review by the end of January in order to be briefed, argued, and decided in that Term.

The suing states normally would have thirty days to reply, but they also have the option of asking for more time to file.  The government may not be able to head that off, but it also would retain an option to formally ask the Court to expedite its review in order to have it decided this Term, which is likely to end in late June.


If the Court were to agree with the government’s argument that the states lacked the right to file their lawsuit, that would be the end of the case.  The Constitution only allows federal courts the authority to decide actual “cases or controversies,” and the lack of proof that a suing party had any vital interest at stake denies it the right even to file a lawsuit in those courts.

If the Court does confirm a right for the states to have sued, it presumably would then move on to decide whether the deferred-deportation policy was likely ultimately to be found illegal.

Technically, the case has reached the Supreme Court while still in a pre-trial stage. The lower courts, besides finding that the states do satisfy “standing” requirements, issued only preliminary orders blocking enforcement.  But they did so on the premise that the states were likely to win their challenge, once it went to a full trial.

The decision to seek review by the Supreme Court is not unexpected. After the ruling by the Court of Appeals, the Federal Government had the option of seeking review by the Justices, seeking review by the entire Fifth Circuit Court of Appeals in an en banc review, or not appealing the matter at all and returning to District Court to fight the cast on the merits. Neither of the last two options seemed likely. As it is, en banc review is something that is discretionary on the part of the Court and may not have been granted, but even attempting to take that step would not have made much sense given that ten of the fifteen Judges in active status on the Court were appointed by a Republican President, meaning that argument before the entire court would have been an uphill battle to say the least. Not appealing the matter at all would have been atypical for the Federal Government in these types of cases, where the Government generally attempts to exhaust its appeals on even a pretrial matter rather than letting adverse rulings stand. Faced with those options, going to the Supreme Court was the best available option.

As with all other cases, the Justices are not required to hear the appeal in this case and it’s possible that they may decide that the procedural posture of the case, in which whatever they rule on their part would only mark the end of the beginning of the case, there may not be four Justices willing to take up the matter. if they do take the case, the question will be whether the appeal can be heard before the end of the current term or whether it would end up being put off until the term that begins in October 2016. My guess would be, though, that if the Justices agreed to take the case they would also agree to take it up on an expedited manner so that it can be ruled on by June of this year.

One thing this would mean, of course, is that the Court would dealing with a number of high-profile cases in which it would be issuing decisions just as the Presidential race is heating up with the party conventions starting in June. In the past several months, the Court has agreed to hear a case involving affirmative action in college admissions from the University of Texas, another case dealing with a Texas law purporting to regulate abortion clinics, a new set of cases dealing with religious objections to the birth control coverage mandate arising from the Affordable Care Act, a case involving the rights of members of public employee unions. a case involving Virginia’s Congressional redistricting that could have national implications, and a case dealing with the meaning of the “one person, one vote” standard when it comes to redistricting. There are also a number of other legal challenges to the Affordable Care Act making their way through the Federal Courts, but it isn’t clear that any of them could make it to the Supreme Court in time to be heard during the current term. In short, even though we don’t have anything on the level of the same-sex marriage cases this term, there will still be plenty on the Supreme Court’s plate between now and June, and plenty of fodder for a Presidential race in which the fact that the next President could have the opportunity to appoint as many as four Justices over the course of the four or eight years they might serve.

FILED UNDER: 2016 Election, Borders and Immigration, Climate Change, Supreme Court, Terrorism, US Politics, , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Guarneri says:

    Not to complain, but do you have any file photos with Justices Kennedy and Ginsberg not looking like they need to be shipped to the nursing home to be fitted with drool napkins?

  2. That’s the official Court portrait, or one of the versions released to the public at least, sadly.

  3. Guarneri says:


    There is no truth to the rumor that Kennedy and Ginsberg were humming “….long time ago when we was fab….” while comparing the two pics…..

  4. C. Clavin says:

    I get that this post is about the legalities involved. We’ll see how the radical activist judges on the court decide to go.
    But this really comes down to one thing; nobody from south of the border, no Muslims, no gays. Really, though…Republicans are not xenophobic. Not at all.

  5. Jack says:

    @C. Clavin: Says the guy whose party has three well off old white people running for president. Compare that to the GOP where there is a black, 2 Hispanics, and an Indian. Yeah, it’s the GOP that are racist old white party though.


  6. C. Clavin says:

    You comment, as per usual, denies the real world. Even on the most basic level…no Cuban considers themselves to be Hispanic, and there is no Indian running for President.
    I’m sure you have some bestiality fantasies to busy yourself with? It’s clear you don’t understand this topic.

  7. C. Clavin says:

    And the black gentleman is in a polling free fall, has zero experience, no grasp of the issues, and clearly no interest in learning the things he has to in order to hold the office.
    Reminds me of Palin that way…so while you were pointing out the sheer ignorance, idiocy, and incompetence of Republican Candidates you could have pointed to a woman too.

  8. Jack says:

    @C. Clavin: And yet, you cannot deny, there are 3, count them, 1…2…3 old, white, upper-class people running for the Democrat nomination. Zero diversity. While the GOP has what? Diversity. Deny it all you like, but it simply gets you the “Stupid Comment of the Week” Award.

    Here’s your sign.

  9. C. Clavin says:

    So what…your argument is meaningless…the policies of the Republican party are all based on xenophobia. Actions speak louder than words, or in this case the rare face or two. The idea that the Republican party is diverse is delusional. You only need to look at the voting make-up of the last Presidential election. 88% of Romneys voters were white. No other race made up more than 6%.
    Even Trump is out tweeting made-up statistics with the singular intent of making black folks look bad.

  10. Jack says:

    @C. Clavin: Three old, white, well off democrats vying to be the symbol of the Democrat party.

    Yeah, that’s diversity alright.

  11. Jack says:

    My guess is the policies in Baltimore, Detroit, Chicago, LA, Missouri, and NY that victimize minorities are to your liking…you know, because Democrats run the place.

    You are so sad.

  12. CB says:

    @Jack: @C. Clavin:

    Uncle. I’m crying uncle.

  13. Andre Kenji says:

    @C. Clavin: Cubans are Hispanic. There is an obvious cultural identification between Cuba and the rest of Latin America. Sure, both Cruz and Rubio are White Hispanics with zero identification with most American Hispanics, but they are Hispanic.

    And Rubio speaks an impeccable Spanish. He speaks with the Miami Accent, but his Spanish is pretty good.

  14. bill says:

    i don’t see why we need to import more people than we already do- we’re just encouraging them to abandon their countries without even trying to change them. last i checked we have a lot of unemployed and under-employed as well.
    true, the rest of the world pretty much sucks compared to us- but i can’t feel all guilty about it. we can’t save everyone as there’s’ way too many who’d like to live here and little room for more.

    reminds me of this witty analogy;


    @C. Clavin:

    “And the black gentleman is in a polling free fall, has zero experience, no grasp of the issues, and clearly no interest in learning the things he has to in order to hold the office”

    reminds me of someone else- who’s still in office and has yet to learn anything.

  15. Tyrell says:

    There is an orderly process , procedure, and laws already in place to control, handle, and provide order and fairness. The president should abide by it.

  16. Deserttrek says:

    @C. Clavin: animals and small children are obviously not safe around you

  17. An Interested Party says:

    And yet, you cannot deny, there are 3, count them, 1…2…3 old, white, upper-class people running for the Democrat nomination. Zero diversity. While the GOP has what? Diversity.

    Umm, tokens do not equal diversity…if we want to see diversity, look at which party attracts a diversity of voters and has a diversity of office holders…here’s a hint, it ain’t the GOP…

    reminds me of someone else- who’s still in office and has yet to learn anything.

    And yet he was elected to the presidency not once but twice…I guess the American people have yet to learn anything either…

  18. Dave Francis says:

    Because I surf the E-newspapers every day, I have began to notice a breakout of Progressive Left wing blogs and media. Its actually saturating the Internet doing their level best to either insult the Conservative ‘Outsiders’ or encompass the web with an account of something they said and twisting the words or omitting any Presidential candidates statements. It is a sly tactic by reporters who have succumbed to the Liberal slant to undermine the Republicans? It is not even any different in the E-Press as the mainstream newspapers are always dominating first on Google, MSN, Yahoo or any search engines. The corporate ownership of the media completely dictate what we read/see, whether it’s the Liberal, Democratic prepared schedule or the GOP Elites? These Super Pac are a scam anyway, but it just show the desperation of the hierarchy in the political parties? THEY ARE GOING TO LOSE THEIR MONEY MAKING MACHINE IF TRUMP WINS?

    Without doubt illegal immigration will be right at the front of issues that will be governing the 2016 election? That be a combination of Donald Trumps wall and by far the most important–MANDATORY E-VERIFY and a BIO-METRIC SYSTEMS FOR ALL EXIT AND ENTRY PORTS. We must enact these programs to stop the drain on all levels of government. It will not be accomplished under Obamas rule, but it sure will if Trump gets the top job. The $$100 billion to $$ 200 dollars that is going to support foreigners and now the chance of 100 thousand Syrian refugees all on this presidents watch. Keep them over there in a safe region and pay for their survival, until ISIS is wiped out?

    Yet another multinational company is moving to Ireland, owing to the high corporation taxes here. They call it “reverse-inversion,” and Allergan, a small Dublin-based drug company that makes products such as Botox, will technically buy the US-based Mega drug company Pfizer, which makes products such as Viagra and Lipitor. These ‘Reverse Inversions” means loss of thousands of jobs, because of the highest corporate taxes in the world. Recently Ford Manufacturing commenced to make a move to Mexico and this will include Nabisco.

    Donald Trump will put a block on these giant companies going overseas or Central America. Trumps ultimatum to these tax games is lowering corporate taxes or suffers the consequences of an import tariff on all goods and products of 35 % entering into the United States. We cannot suffer any more from job losses of companies leaving this nation. Unfortunately we have a bunch of Bozo’s in Washington, who don’t seem to care about our business policies? Unless of course they have a secret motive to make money from shares, which are hidden from public view?

    Donald Trump is on the highest rung of business acumen; a top notch contract writer and he can reclaim businesses and industry that is already in some low tax country. WE just cannot compete with China, Mexico, India Mexico, and a mass of foreign and governmental entities. Trump is the ONLY one for President will bring back employment for all Americans. It’s a renewal for depressed neighborhoods were crime is rampant? There is an outcry from the impoverished that are dragged down by poverty, whether you’re a black, Hispanic, Latino, white American citizen or lawfully here immigrant or any other race, who are either have a poor paying job, underemployed or just have vanished from the job market. 92 million Americans have no job and are reliant on Welfare programs.

    Hillary Clinton, Bernie Sanders plan is to spend what money is left in the state and federal treasuries. Only jobs government can produce is in there sector, whereas jobs are created in the private sector. Yes! They can spend taxpayer’s money on free education, free healthcare free everything–but it cannot survive?

    To find any news minus any unbiased reporting I either click over to One American News Network or try BBC America. It carries the factual intelligence not stimulated by the wealthy media or the TV airwaves. Right now its broadcasts are compromised by a mega merger between the Charter Corporation and Time Warner? If they join in this merger then they are not going to carry ONE AMERICAN NEW NETWORK. These are multimillion dollar corporations that obviously feel intimidated, by this small family oriented company? It will be a great shame to our freedoms, our free speech if they end up on the chopping block. If you belief in a free thinking American broadcasting network, click on their web site and learn more. Cost you nothing, but you could save an independent news agency from extinction. It’s all factual intelligence news from around the world and the USA. There is a short and simple process to register your support of One America News Network directly to the FCC. Here’s how:

    One America News Network Needs Your Help. SHOW YOUR SUPPORT! http://www.oann.com/help/

    I already contacted Donald Trump, Senator Ted Cruz, and former Governor Huckabee on Twitter. Now it’s the American public turn to stop the massive monopolies, who wants control of the Internet, TV and the airwaves.

  19. Grewgills says:

    @Dave Francis:

    Because I surf the E-newspapers every day, I have began to notice a breakout of Progressive Left wing blogs and media. Its actually saturating the Internet

    Good work man. You are a mighty Poe.