HOUSTON (CN) - Calling a federal judge's injunction against President Obama's immigration policy directives "unprecedented and wrong," the Department of Justice on Thursday asked the 5th Circuit to lift the hold.
Twenty-six Republican-controlled states sued Department of Homeland Security Secretary Jeh Johnson and other top immigration officials in December 2014, claiming Obama's deferred deportation programs are unconstitutional because they exceeded his presidential powers.
The 5th Circuit on Friday said it will give the Republican states until March 23 to respond to the feds' motion.
The injunction is preventing the Department of Homeland Security from implementing executive orders that could give around 5 million undocumented immigrants the right to live in the United States without fear of deportation until the end of Obama's term.
"The Constitution does not entitle states to intrude into the uniquely federal domain of immigration enforcement," Justice Department attorney Scott McIntosh said in the motion for emergency stay pending appeal. "Yet the district court has taken the extraordinary step of allowing a state to override the United States' exercise of its enforcement discretion in the immigration laws."
The Department of Justice asked Hanen to lift the injunction pending the 5th Circuit's ruling on their appeal, but Hanen said Monday that he will not rule on any motions in the case until he hears testimony about why U.S. Citizenship and Immigration Services recently granted extended amnesty to 100,000 undocumented immigrants.
In issuing his injunction, Hanen found that Texas has standing to sue because it will bear the cost of processing driver's licenses for qualifying immigrants.
Because Hanen addressed only how the policy changes will affect Texas, the Justice Department told the 5th Circuit the injunction completely blocking the programs is "drastically overbroad" and the appeals court should limit it to Texas.
Obama's directives prioritize removal of immigrants who have committed serious crimes, recent border-crossers and threats to national security, while giving migrants who came to the United States as children and who are the parents of U.S. citizens a chance to live here legally and apply for federal work permits.
"Because the number of aliens subject to removal vastly outstrips the resources that Congress has given DHS to remove them, DHS must decide which cases to prioritize," McIntosh says in the motion.
The programs are based on the idea of prosecutorial discretion, which has been used by past presidents, including Ronald Reagan and George H.W. Bush, to let some undocumented migrants legally stay in the country.
The programs were set to take effect on Feb. 18 and in mid-May, but Hanen's injunction put them on hold.
Republicans in Congress unsuccessfully tried to tie Department of Homeland Security funding to repeal of the programs.
The Justice Department says Hanen erred with his order that found Texas has standing, because the rules do not mandate that any state provide qualifying immigrants with driver's licenses.
"Nothing in the Guidance requires aliens who receive work authorization to apply for licenses, requires states to issue licenses to these aliens, or requires states to charge a particular fee," McIntosh wrote.
Hanen, a George W. Bush nominee who presides in Brownsville, has been openly critical of the Obama administration's immigration policies. Critics of the lawsuit claim the plaintiffs handpicked Hanen because they knew he would rule in their favor.