Federal Panel Lets Injunction Against Obama’s Immigration Actions Stand

By JULIA PRESTON
MAY 26, 2015 - New York Times

A federal appeals court on Tuesday denied the Obama administration’s request to lift a hold on the president’s executive actions on immigration, which would have granted protection from deportation as well as work permits to millions of immigrants in the country illegally.

Two of three judges on a panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, left in place an injunction by a Federal District Court judge in Brownsville, Tex. The ruling comes in a lawsuit filed by Texas and 25 other states against actions President Obama took in November. Many of the initiatives were scheduled to take effect this month.

The appeals court found that the states had sufficient legal grounds to bring the lawsuit and that the administration had not shown that it would be harmed if the injunction remained in place and the programs were further delayed.

Also denied was a request by the administration to limit the injunction to the states bringing the lawsuit. The ruling is a second setback for programs the president hoped would be a major piece of his legacy, raising new uncertainty about whether they will take effect before the end of his term and casting doubts on the confidence of administration lawyers that their case was very strong.

The lawsuit was filed in December, and on Feb. 16, Judge Andrew S. Hanen of Federal District Court in Brownsville ordered a preliminary injunction on the programs while he ruled on the constitutional issues in the suit.

In a statement, Ken Paxton, the attorney general of Texas, said Mr. Obama had tried to impose “a drastic change in immigration policy” without the consent of Congress. The appeals court decision is “a victory for those committed to preserving the rule of law in America,” Mr. Paxton said. “We will continue to fight the brazen lawlessness that has become a trademark of the Obama administration.”

White House officials said the ruling was not surprising, but they declined to discuss the next legal move for the administration.

“Today, two judges of the Fifth Circuit chose to misrepresent the facts and the law,” a White House spokeswoman, Brandi 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. They are squarely within the bounds of his authority, and they are the right thing to do for the country.”

The Justice Department could appeal the ruling on the emergency stay to the full appeals court, but legal experts said it was more likely that the administration would skip that conservative court and ask the Supreme Court to allow the programs to proceed.

The legal wrangling suggests that Mr. Obama and his aides may have underestimated the legal and political challenges to offering protections to more than four million illegal immigrants without a congressional vote.

In the 70-page opinion, two judges wrote that Texas had shown it would incur significant costs in issuing driver’s licenses to illegal immigrants who would be allowed to stay in the country. The judges, Jerry E. Smith and Jennifer Elrod, also rejected the administration’s argument that the programs could not be reviewed by the courts because they stemmed from policy decisions by the president on how to enforce the immigration laws.

Judge Stephen A. Higginson disagreed. He wrote that the administration was “adhering to the law, not derogating from it.”

Immigrant advocates supporting the president worried that the longer the initiatives are held up, the harder it could be to persuade immigrants to come forward to sign up.

Marielena Hincapie, executive director of the National Immigration Law Center, said that part of the intent of the lawsuit was “to delay, to confuse and to instill fear” among immigrants. “The consequences are devastating,” she said. “Our communities suffer every single day.” She acknowledged that carrying out the programs would be “a harder challenge for our communities” after long delays.

The decision by the Fifth Circuit to leave the Texas judge’s injunction in place does not necessarily mean the Obama administration will lose the larger case. Aside from the emergency stay, the Fifth Circuit is considering the administration’s appeal of the injunction, which takes more time. The Fifth Circuit tentatively scheduled oral arguments on the appeal the week of July 6.

Stephen H. Legomsky, a professor of immigration law at Washington University, said the appeals court panel had denied the administration’s request for an emergency stay “because it feels that a delay would cause no irreparable harm.” But he said, “The panel that ultimately decides the appeal could well agree with the government’s position and reverse Judge Hanen’s injunction.” Professor Legomsky, formerly the top lawyer for the federal immigration services agency, has submitted documents to the court supporting the administration.

In earlier opinions, Judge Hanen had been an unusually expressive critic of the Obama administration’s immigration policies. In his decision to impose the injunction, he said the president’s initiatives amounted to an abdication of immigration enforcement. The two appeals judges who upheld the injunction are also conservatives.

Judge Smith, who was nominated by President Ronald Reagan in 1987, sparred publicly with Mr. Obama over the scope of judicial review during a case involving the health care law in 2012. Judge Elrod was nominated by President George W. Bush in 2007. Judge Higginson was nominated by Mr. Obama in 2011.

Legal analysts point to two other recent federal court rulings in similar cases that favored the administration. In December, a federal judge in Washington dismissed a lawsuit against the president’s actions by Joe Arpaio, the outspoken sheriff of Maricopa County, Ariz. The judge said the sheriff’s dispute with the administration was political, not legal.

A potentially more significant decision came on April 7 from judges on the Fifth Circuit. They dismissed a lawsuit by federal immigration agents against deportation protections Mr. Obama gave in 2012 to young undocumented immigrants who came to the United States as children. The president used the same legal justification for that program as he did for the recent initiatives.

The appeals court found that the state in that lawsuit, Mississippi, had failed to show that it would face any burdensome costs because of the 2012 program. The court also agreed with the administration’s argument that the secretary of Homeland Security has broad authority to decide how to enforce the immigration laws.

The Texas lawsuit has divided the country. While 26 states want to stop the president’s initiatives, 14 states and the District of Columbia filed papers in the appeals court saying Texas and its allies had failed to consider the benefits the programs would bring in increased tax revenues and economic growth.