Civil and Human Rights

Federal appeals court sides with Texas against Obama on immigration

By Ariane de Vogue


Washington (CNN) — A federal appeals court on Tuesday denied a request from Justice Department lawyers to allow President Barack Obama’s controversial immigration actions to go into effect pending appeal.


The decision is a victory for Texas and 25 other states that are challenging the Obama administration’s actions, which were blocked by a District Court judge in February. Tuesday’s decision means that while the issue is appealed, eligible undocumented immigrants will be unable to apply for the programs aimed at easing deportation threats.


“Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction,” according to the 2-1 decision by a panel of the U.S. Fifth Circuit Court of Appeals.


At issue is the implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA), a program that permits teenagers and young adults who were born outside of the United States, but raised in the country, to apply for protection from deportation and for employment authorizations.


Brandi Hoffine, a White House spokeswoman, said the judges in the Fifth Circuit “chose to misinterpret the facts and the law” in their ruling denying the request for a stay.


“President Obama’s immigration executive actions are fully consistent with the law,” Hoffine said. “The President’s actions were designed to bring greater accountability to our broken immigration system, grow the economy, and keep our communities safe.”


The White House said Justice Department lawyers are evaluating the ruling and considering next steps.


Texas Attorney General Ken Paxton praised the ruling, calling it a “victory for those committed to preserving the rule of law in America.”


“Telling illegal aliens that they are now lawfully present in this country, and awarding them valuable government benefits, is a drastic change in immigration policy,” he said in a statement. “The President’s attempt to do this by himself, without a law passed by Congress and without any input from the states, is a remarkable violation of the U.S Constitution and laws.”


Pro-immigration reform groups said they were disappointed by the ruling, but not willing to throw in the towel.


“The immigration actions will help our economy, our community and our families. Each day this injunction remains in place we all suffer the consequences,” said Karen Tumlin of the National Immigration Law Center.


Stephen Yale-Loehr, a Cornell University Law School prof, downplayed the significance of Tuesday’s decision.


“The court of appeals merely held that the district court did not err when it held that Texas had standing to sue,” he said. “The true test will be on the merits of the case. That could be a few years down the road, after a trial.”


And Elizabeth Wydra, of the progressive Constitutional Accountability Center, who filed a brief on behalf of bipartisan group of former members of Congress, notes the administration could decide the issue is important enough to go straight to the Supreme Court just to get the programs unblocked pending appeal.


“Given the strong public interest in getting DAPA off the ground as soon as possible, the administration will almost certainly go straight to the Supreme Court,” she said. “It will file this request with Justice (Antonin) Scalia, the justice assigned to the Fifth Circuit, but he will very likely refer the matter to the entire Court for all of the justices to consider.”


U.S. District Judge Andrew S. Hanen of the United States District Court for the Southern District of Texas blocked the programs in February, holding that the administration had failed to comply with the procedural requirements under the Administrative Procedures Act, a federal statute that sets out rules for the way that federal agencies can establish regulations.


The law provides an avenue of review for an agency’s action and requires it to engage in a “notice and comment” procedure before it issues rules.


In court papers, the administration argued that it was not issuing rules, but instead, a “general statement of policy,” which is exempt from the “notice and comment” requirement. It said that the Judge Hanen was wrong to grant the states standing — or the legal right — to bring the suit.


The opinion was written by Judge Jerry Smith, appointed to the bench by President Ronald Reagan, and joined by Judge Jennifer Walker Elrod, a George W. Bush appointee. Judge Stephen A. Higginson, who was appointed by Obama, dissented.

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