5th Circuit Rebuffs|Obama on Immigration

     (CN) – The 5th Circuit on Tuesday refused to lift the injunction blocking President Obama’s deferred deportation program for undocumented immigrants.
     The three-judge panel denied the government’s request to stay or narrow the scope of the injunction pending appeal.
     Judge Stephen Higginson wrote a lengthy dissent to the opinion of      Judge Jerry Smith, which was joined by Judge Jennifer Elrod.
     The 2-1 ruling agreed that lead plaintiff Texas has standing to sue the federal government because it will bear the cost of issuing driver’s licenses to qualifying immigrants, estimated at 4.3 million of the 11.3 million paperless immigrants in the United States.
     Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), was to launch this month. But 26 Republican-held states sued the federal government last December and persuaded U.S. District Judge Andrew Hanen to issue an injunction. Hanen did so in Brownsville, finding the Obama administration and the Department of Homeland Security violated the Administrative Procedure Act by skipping the notice-and-comment period for public input on substantive rule changes.
     The Republican states also claimed that by altering immigration policy without the input of Congress, Obama violated the “Take Care Clause” of the Constitution.
     The Justice Department asked the 5th Circuit to lift Hanen’s stay and the panel heard arguments in April .
     DAPA expands on a program former Department of Homeland Security Secretary Janet Napolitano started in 2012 called Deferred Action for Childhood Arrivals, which offered lawful presence rights to children brought to the United States illegally as children. Both DAPA and DACA were designed to give immigration officials discretion on whom to deport in the face of limited resources, and to keep families of law-abiding immigrants together.
     Under DAPA, immigrants would be granted temporary, possibly renewable, lawful presence in the United States. They could also apply for a federal work permit and a driver’s license.
     The 5th Circuit majority found the case turns on the issue of driver’s licenses. Although the federal government has argued that no state is required to issue driver’s licenses to DAPA recipients, or subsidize the license processing costs, the majority found that reasoning flawed.
     “The district court found that Texas would lose at least $130.89 on each license it issues to a DAPA beneficiary and the United States does not dispute that calculation on appeal,” Judge Smith wrote for the majority.
     Although Texas could raise its fees to cover the costs, that in itself would be an injury that warrants an injunction, Smith continued, siding firmly with states’ rights.
     “If pressure to change state law in some substantial way were not injury, states would have no standing to challenge bona fide harms because they could offset most financial losses by raising taxes or fees,” wrote Smith, a Reagan appointee.
     Because only Texas, of the 26 plaintiffs, gave evidence of how DAPA would harm it, the feds asked the 5th Circuit to limit the scope of the injunction to the Lone Star State. But the majority refused, finding that only one state has to establish standing.
     Echoing Hanen’s contention that it’s best to block DAPA before it takes effect, because, as Hanen wrote, the “genie would be impossible to put back into the bottle,” Smith found the Republican states would be substantially harmed if the injunction were lifted.
     “A stay would enable DAPA beneficiaries to apply for driver’s licenses and other benefits, and it would be difficult for the states to retract those benefits or recoup their costs even if they won on the merits. That is particularly true in light of the district court’s findings regarding the large number of potential beneficiaries, including at least 500,000 in Texas alone,” Smith wrote in his 42-page majority opinion.
     In dissent, Judge Higginson took issue with Hanen’s portrayal of DACA as a program that impedes Congress’s goal of deporting all undocumented immigrants.
     “Congress could, but has not, removed discretion from DHS as to which undocumented immigrants to apprehend and remove first,” Higginson wrote, citing 5th Circuit and U.S. Supreme Court case law that establishes a president’s right not to deport immigrants for humanitarian reasons.
     Higginson also gave legs to the assertion that the Obama administration has deported more than any of its predecessors, a claim disputed by the Center for Immigration Studies, a nonprofit think tank.
     “It is undisputed that the Executive presently is deporting a total number of immigrants at a faster rate than any administration before, ever; that the Executive is and should allocate limited resources to deport violent and dangerous immigrants, ahead of citizen-children’s parents who self-report to DHS acknowledging their illegal presence,” Higginson, an Obama appointee, wrote in a 25-page dissent.
     Higginson said he would lift Hanen’s injunction because he believes the policy memo underlying DAPA is “non-justiciable.”
     Calling the injunction a “judicial fiat ordering what Congress never intended,” he added that it’s clear from the 298 members of Congress who gave their support for or against DAPA in amicus briefs that politics is interfering with sensible immigration policy.
     The 5th Circuit scheduled hearing on the merits of the plaintiffs’ case for early July.

%d bloggers like this: