In Courts, Running Out the Clock on Obama Immigration Plan
By MICHAEL D. SHEAR and JULIA PRESTON
OCT. 13, 2015 - The New York Times
WASHINGTON — The prime-time
assertion of executive power was audacious and far-reaching. Nearly a year ago,
President
Obama vowed that his administration would provide up to four million
undocumented immigrants the ability to live and work in the United States
without fear of immediate deportation.
It almost certainly will not happen
for the vast majority of them.
The conservative legal campaign
against the centerpiece of Mr. Obamafs immigration overhaul has largely
succeeded in running out the clock, blocking the presidentfs executive actions
from taking effect while judges consider their legality. Now, even if Mr. Obama
ultimately prevails in the legal battle — which would occur next summer at the
earliest — there will probably be time for at most a few hundred thousand of
those immigrants to qualify for protection before the end of the presidentfs
term.
Worse for the administration, in
the next few weeks, the states fighting to stop Mr. Obama may score their
biggest victory yet — achieving a long-enough delay in the lower courts to
prevent the Supreme Court from even considering and ruling on the case until
after next yearfs presidential election. That timing would leave any final
decision about immigration to Mr. Obamafs successor.
The immediate holdup is the United
States Court of Appeals for the Fifth Circuit, in New Orleans, where a
three-judge panel has been deliberating the presidentfs actions for more than
three months — far longer than the courtfs goal to decide gwithin 60 days after
argumenth in most cases. White House officials are bracing for a loss in the
appeals court, in part because two of the three judges have already ruled
against the administration in an earlier decision.
But Mr. Obama needs a ruling soon
from that panel so his lawyers can try to persuade the Supreme Court to take the
case. If the decision does not come quickly, his hopes for a late-hour appeal to
the Supreme Court this year will disappear.
Already, disappointed immigration
activists are preparing a fallback strategy to try to turn the fate of Mr.
Obamafs promise into a political issue on the 2016 campaign trail. Their goal is
to motivate immigrants who are citizens to vote by focusing on what the
activists say is the once-in-a-lifetime chance that has slipped away for
millions who are undocumented.
Starting Wednesday, about a dozen
protesters will fast for nine days in the park across from the Fifth Circuit
courthouse.
gThe lack of action is taking on
the tenor of political behavior that is unconscionable for a federal court,h
said Kica Matos, the director of immigrant rights and racial justice for the
Center for Community Change, an organizer of the protest. gWe want to let the
court know that we are watching. It is not acceptable to us that they are going
to run out the clock to achieve political goals.h
The extended legal delays have
upended the presidentfs hope for a final legacy-making success on immigration.
After years of a fruitless battle with House Republicans to pass a comprehensive
overhaul of the nationfs immigration laws, Mr. Obama last year concluded that he
should, and could, act on his own. He announced his plans in a speech to the
nation on Nov. 20.
But the presidentfs advisers urged
him to move quickly to establish the program, known as Deferred Action for
Parents of Americans. If millions signed up by the time Mr. Obama left office,
they said, the next president would find it difficult to reverse, even if a
Republican wins the White House.
Aides mapped out a plan to build a
new bureaucracy to process millions of applications from undocumented
immigrants. Officials quickly signed a $7.8 million lease for a Washington-area
building and began interviews to hire 1,000 new employees. Those efforts were
scuttled when a Texas judge ordered a halt to the program.
Officials say they are prepared to
begin that process again quickly once they receive a final go-ahead from the
courts. In 2012, it took about 60 days to set up a similar but smaller program
for undocumented immigrants who were brought to the United States as children.
White House aides say they could restart the latest program in that time.
But the crawl of the legal system
is working against them.
Almost immediately after Mr. Obama
announced his executive actions, Texas and 25 other states filed a lawsuit
seeking to stop him. In February, Judge Andrew S. Hanen of Federal District
Court in Brownsville, Tex., ordered a preliminary injunction on the programs
while he considered the constitutional and other issues in the suit. The
government appealed, but the Fifth Circuit panel hearing that appeal has yet to
decide.
The circuit court must decide soon
to give the administration the time for a final appeal to the Supreme Court.
gWhat is the point of no return?h
said Josh Blackman, a law professor at the South Texas College of Law who filed
an appeals court brief opposing the presidentfs executive actions. gAs long as
we get a decision by the end of October or beginning of November, the case could
be heard by the Supreme Court this term.h
John P. Elwood, a lawyer at Vinson
& Elkins who follows Supreme Court procedures closely, said the Obama
administration might have a few more weeks than that — until late November — to
be heard in the current term once the Fifth Circuit rules.
But lawyers for the State of
Texas, whose lawsuit is seeking to stop Mr. Obama, will then have the right to
seek an extension beyond the usual 30 days to file briefs, another delay that
could get in the way of prompt Supreme Court consideration.
gThe petition seems like it would
have to be filed by Nov. 27 or 30, if Texas is being cooperative,h for the case
to be hear in the current term, Mr. Elwood said.
If the Supreme Court considers the
case this term, activists are counting on the justices to overturn the lower
courts and let Mr. Obamafs immigration program move forward.
But the earliest a positive
Supreme Court decision is likely to come is in June 2016, leaving only a few
months before the presidential elections. Add the amount of time it would take
for officials to renew the lease, hire the new employees and print the
documents, and that time shrinks even further.
By then, the presidential campaign
will be at a fever pitch. Officials would be asking immigrants in the United
States illegally to come forward and apply at the same time that the Republican
candidate for president would probably be campaigning on a promise to end Mr.
Obamafs program.
gThat fear will definitely be
there, and there will be people who will wait,h said Marielena Hincapié, the
executive director of the National Immigration Law Center. But she added that ga
positive Supreme Court decision will be an infusion of hope and energy for
people to come out and vote.h
White House officials and
advocates are pressing forward on parts of the presidentfs executive actions
that were not blocked by the courts, including new enforcement priorities for
immigration authorities that have reduced the number of deportations.
Officials are also trying to
publicize a recent procedural change that could help hundreds of thousands of
undocumented immigrants who are married to American citizens or legal residents
to apply for green cards.
gWe have been mobilizing all over
the country, we have done hundreds of meetings and workshops, and our big
message to the entire community was get ready, whenever it happens,h Ms. Matos
said. gWhen we get closer to the election, the Republicans may start to realize
that they need our votes.h