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Fifth Circuit hears request to lift immigration injunction order

Always best to temper one’s expectations with these guys.


An argument from U. S. Department of Justice lawyers that the state of Texas doesn’t have standing to challenge the Obama administration’s controversial immigration policy met with resistance from a pair of federal appellate judges Friday.

A three-judge panel of the 5th Circuit Court of Appeals in New Orleans heard more than two hours of arguments as federal attorneys fought to win reversal of a Brownsville-based judge’s earlier order blocking the policy.


Judge Jerry E. Smith, who was appointed by President Ronald Reagan, immediately interrupted Mizer, saying the difference in this case was that Texas claims that Obama’s order also grants special benefits, mainly work authorization, to the potential applicants. The Lone Star State will also suffer damage, said Texas Solicitor General Scott Keller, because it will have to educate and provide health care to the immigrants. It will also incur costs for having to issue some driver’s licenses.

Smith later asked Mizer to differentiate between the immigration lawsuit and a 2007 U.S. Supreme Court ruling in an environmental case in which several states successfully sued the federal government. That case was also mentioned in Hanen’s ruling halting Obama’s order.

“Explain why in your view that case on the standing issue has no applicability here,” Smith said.

Mizer said that case dealt with geographic borders and not benefits to individuals.

Judge Jennifer Elrod also questioned when, if ever, states would have standing to sue on immigration issues and presented Mizer with a list of hypothetical scenarios, including one that gave immigrants immediate voting rights.

Mizer said provisions of the Voting Rights Act would come into play separately but Elrod was mildly cynical.

“We finally found one that the state’s could challenge? If it gave voting rights?” she said.

One judge however, Obama appointee Stephen Higginson, cautioned that a ruling in favor of Texas and the 25 other states that joined the suit could open a floodgate of challenges to several government agencies.

“This is a dangerous rule for us to write,” Higginson said.

He was also skeptical of Texas’ claim that Obama was issuing “amnesty” through his order and that deferred action recipients were automatically allowed to legally work in the country.

“Does it say ‘grant’ or does it say ‘eligible to apply’” for work, he asked. “That’s a big difference.”

He also said that his interpretation of deferred action wasn’t legal status, which leads to permanent residency and possibly, eventual citizenship, but legal presence.

“Presence is ‘you’re not removable but you could be’” he said, referring to a provision of deferred action that allows the government to reopen a case and initiate deportation proceedings if it sees fit.

See here for the background. The Chron story described Judge Smith as “mostly reserved” rather than resistant, so make of that what you will. Again, this isn’t about the merits of Judge Hanen’s ruling but whether or not the injunction should stay in place while the appeals process plays out. I’m pretty sure whoever is on the losing end of the panel’s ruling will ask the full court to reconsider, then it will be off to SCOTUS, so we’re in for a long haul here.

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