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Fifth Circuit denies Obama immigration executive order appeal



A three-judge panel of the U.S. 5th Circuit Court of Appeals has once again ruled against the Obama administration’s controversial immigration program, upholding a lower court’s injunction barring the plan from taking effect while awaiting the outcome of a full trial on the lawsuit’s underlying arguments.

The policy, called Deferred Action for Parents of Americans and Lawful Permanent Residents, was announced in November 2014 and would have allowed for more than 4 million undocumented immigrants nationwide to apply for three-year renewable work permits and reprieves from deportation proceedings.


Judge Jerry E. Smith, who was appointed by former President Ronald Reagan, and Judge Jennifer Elrod, who was appointed by former President George W. Bush, voted to deny the request. Judge Carolyn Dineen King, appointed by former President Jimmy Carter, cast the dissenting vote.

Attorneys for the state of Texas had argued that in addition to circumventing Congress and abusing his authority to enact immigration laws, the president’s order would cause the state harm in the cost of providing undocumented immigrants driver’s licenses and other benefits.

Smith and Elrod agreed.

“The states have satisfied the other requirements for a preliminary injunction,” the opinion states. “DAPA beneficiaries would be eligible for driver’s licenses and other benefits, and a substantial number of the more than four million potential beneficiaries—many of whom live in the plaintiff states—would take advantage of that opportunity.”

The panel also rejected the administration’s argument that halting the program would harm the administration’s ability to prioritize its resources.

“Separately, the United States postulates that the injunction prevents DHS from effectively prioritizing illegal aliens for removal. But the injunction ‘does not enjoin or impair the Secretary’s ability to marshal his assets or deploy the resources of the DHS [or] to set priorities,'” the opinion states.

The next step for the administration will likely be an appeal before the U.S. Supreme Court. But it’s unclear whether the high court, which began its current term last month, has enough time to consider the case.

“In this case the time line has always been a critical element of the outcome since it is a presidential discretionary order,” Muzaffar Chishti, an attorney and director of the Migration Policy Institute’s office at New York University School of Law, told the Tribune in October. “Whether it can happen during the life of this presidency has always been the dominant question.”

Chishti added that November might be the last month the Obama administration could ask the high court to consider the case. If it does, a ruling could come as late as June.

See here, here, and here for some background. The small bit of good news out of this is that there’s some (though not much) time for this ruling to be appealed to SCOTUS for their spring docket, which would be the last chance for this to be decided while President Obama is still in office. (In fact, the Obama administration has already said that it will appeal to SCOTUS.) After that, whatever happens will be up to the next President and what Congress and the courts allow. A statement from the Texas Organizing Project is beneath the fold, and the Associated Press, Think Progress, the Washington Post, and the Press have more.

Texas Organizing Project:
“We remain confident that this executive action will be ruled constitutional by the Supreme Court.”

The following is a statement from Danny Cendejas, immigration campaign field director of the Texas Organizing Project, on the Fifth Circuit Court of Appeals’ decision today, continuing to block the implementation of DAPA and expanded DACA.

“Gov. Greg Abbott’s lawsuit continues to keep millions of hardworking immigrant families living in fear and on the margins. It also robs Texas of more than $300 million in tax revenue over the next five years. Today’s court ruling is far from the final word on President Obama’s executive action.

“We remain confident that this executive action will be ruled constitutional by the Supreme Court. Meanwhile, we are continuing to help people get ready to apply for administrative relief. Already we have helped more than 2,000 Texans get informed and ready.

“As we approach the one-year anniversary of the President announcing DAPA and expanded DACA, TOP members are holding demonstrations and days of action this month to show that immigrant and Latino families will not sit idly by while their rights continue to be trampled on by Gov. Abbott. We are fighting back and holding him accountable for his efforts to continue separating families.”

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