Obama administration asks appeals court to block judge's immigration order

The Obama administration on Thursday stepped up its drive to revive President Barack Obama’s recent executive actions on immigration by asking a federal appeals court to block a judge’s order prohibiting the president from going forward with plans to offer quasi-legal status and work permits to millions more illegal immigrants.

Justice Department lawyers filed an emergency motion with the New Orleans-based 5th Circuit U.S. Court of Appeals, asking that court to overturn last month’s injunction by U.S. District Court Judge Andrew Hanen.


Hanen’s injunction was issued at the request of officials from 26 states who objected to Obama’s moves.

“The district court’s order is unprecedented and wrong,” the Justice Department filing said. “The Constitution does not entitle States to intrude into the uniquely federal domain of immigration enforcement.”

In accordance with normal federal court practice, the Justice Department asked Hanen himself to stay the order. He indicated earlier this week that he did not plan to rule for or against the stay request until federal officials clarified the actions they took under Obama’s latest round of immigration actions between the time they were announced in November and February, when Hanen issued his injunction.

The Obama administration is asking the 5th Circuit to lift Hanen’s order entirely while the federal government’s appeal goes forward. However, Justice Department lawyers suggested to Hanen and to the appeals court that another option would be to narrow his order only to cover the state of Texas, rather than the entire country as the judge directed.

Such a move was appropriate, the DOJ’s lawyers said, because only evidence about potential harm in Texas was presented to the judge. Lawyers for the states have opposed any stay and any narrowing. They contend that Hanen did receive evidence of problems Obama’s actions could cause in other states and that the judge had authority to issue a nationwide injunction.

“The order prohibits implementation not only in Texas, but also in plaintiff States that have not been found to have standing—and in States that are not parties to the suit, including ones that support these policies,” Justice Department lawyers wrote.

Underscoring that point, 14 states filed an amicus brief with the appeals court Thursday asking that Hanen’s order be lifted at least in those states which do not object to Obama’s moves.

“At the very least, this Court should stay the order outside Texas, as no other State has presented any evidence that it will suffer the irreparable injury needed to justify injunctive relief,” lawyers for the 14 states supporting Obama wrote. “As the States joining this brief show below, States will benefit from these immigration reforms. The amici States should not have to live under an improper injunction based on harms other States incorrectly claim they will suffer.”

The immigration executive actions Obama announced in November had several components. One expanded an existing program giving work permits and protection from deportation to illegal immigrants who came to the U.S. as children. Another created a program offering similar benefits to illegal immigrants who are parents of U.S. citizens or green card holders.

“The preliminary injunction is a sweeping order that extends beyond the parties before the court and irreparably harms the Government and the public interest by preventing [the Department of Homeland Security] from marshalling its resources to protect border security, public safety and national security, while also addressing humanitarian interests,” Justice Department lawyers wrote.

Later Thursday, the Justice Department also moved to expedite its appeal of Hanen’s decision, which questioned Obama’s authority to carry out the immigration actions, but blocked them solely on the basis that the administration failed to allow a notice-and-comment period the judge said was required by federal law.

Federal government lawyers are also tangled in a dispute in front of Hanen about immigration authorities’ decision to grant 100,000 illegal immigrants three-year “deferred action” rulings and work permits under an earlier program Obama announced in 2012. Those permits had previously been limited to two years but beginning in November of last year, officials began granting three-year permits in accordance with a change Obama announced that month.

Texas and other states challenging the Obama moves have suggested the federal government didn’t make clear that this part of Obama’s latest immigration actions was already underway. Justice Department lawyers pointed Thursday to instances where they disclosed that the three-year grants were moving forward, but the attorneys acknowledged that prior filings in the case may have “created inadvertent confusion.”

Hanen has scheduled a hearing on the issue next week and said he would not address any stay motion before then.

The Obama Administration has been under pressure from immigrants’ rights groups to move quickly and aggressively to get Obama’s actions back on track. There are fears that if the actions remain blocked during protracted litigation, even if the administration ultimately prevails, it could be difficult to process millions of applications before Obama is set to leave office in 2017.

Since the actions draw on claimed executive powers, a future president would be under no legal obligation to continue them.

Texas and the other states suing the administration said Thursday that there’s no need to rush the proceedings, in part because the Obama Administration has dragged its feet in court in recent weeks.

“Defendants themselves saw no urgency: They waited a full week to seek a stay in the district court and almost a month to seek a stay here,” Texas Attorney General’s office attorney Scott Keller said in a letter to the appeals court. “Accelerated consideration is inconsistent with the litigation approach that Defendants themselves have taken and with the injunction’s effect of preserving the status quo.”