Obama immigration orders likely headed for new legal setback

President Barack Obama appears likely to lose – again – in the protracted legal fight over his executive actions on immigration.

Two of the three appeals court judges who heard oral arguments Friday on the Obama administration’s immigration programs were skeptical about the legal merits of the directive, which could halt deportations for more than 4 million immigrants here illegally who have family ties in the United States.


The chilly reception from the three-judge panel in the Fifth Circuit Court of Appeals on whether Obama had legal authority to take such action seems to indicate that a lower court decision blocking the new programs would stay in place.

The Obama administration has argued that the executive actions were a standard use of prosecutorial discretion, since the federal government does not have the resources to deport the estimated 11 million immigrants here illegally. But Judge Jerry Smith disputed that contention.

“It puts them one step ahead in terms of being eligible for lots of potential benefits, whether those are Social Security and Medicare, work authorization, earned income tax credits, and on the state level, drivers’ licenses,” Smith said of immigrants who would benefit from Obama’s actions. “Just seems to me that … it really is a lot more than prosecutorial discretion.”

And Judge Jennifer Walker Elrod, like Smith a Republican appointee, repeatedly grilled administration lawyers on Friday.

She had questions on whether the Department of Homeland Security had “boundless” authority to grant work permits, and whether so-called “deferred action” — stopping deportation of certain undocumented immigrants — could give work authorization to a broad class of people here illegally.

“It would seem that it would be unlawful to allow other people to have deferred action with work authorization when who gets work authorization is specifically limited to very narrow classes,” Elrod said.

Benjamin Mizer, the acting assistant attorney general for the Justice Department’s Civil Division, argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound.

“It doesn’t make much sense to say, ‘We’re not going to be able to remove you right now, so you have to go back out into the country, but you’re not allowed to work, [and] if you’re gonna work, it has to be off the books,’” Mizer said. “As a policy matter, it doesn’t make sense.”

The drawn-out legal case over Obama’s executive actions , which he announced last November to much fanfare and controversy, threatens to undermine what otherwise would have been a legacy item for the president in his second term.

Few expect Obama to prevail in the Fifth Circuit, which already rejected an emergency request from the administration to let the executive actions — scheduled to begin in February but on hold since then — to proceed while the larger legal case plays out in the courts. The New Orleans-based court is considered the most conservative appeals court in the country.

The two judges who ruled against the Obama administration in that May decision also heard the two-hour oral arguments Friday: Elrod, who was appointed by President George W. Bush, and Smith, appointed by President Ronald Reagan.

Now, the bigger question in the legal case is timing — and whether a high-stakes legal fight over Obama’s immigration actions will explode in the heat of the 2016 presidential campaign.

The Fifth Circuit judges don’t have a deadline for delivering their final ruling. And after the appeals court considered the stay, that ruling wasn’t handed down until more than a month after the oral arguments in April.

It’s conceivable that — if the battle goes to the Supreme Court and justices take the case — a final decision on the legality of Obama’s actions may not come before June 2016.

Immigration advocates are already expecting a loss at the Fifth Circuit. Marielena Hincapie, the executive director of the National Immigration Law Center, attended the hearing, and she argued that the Republican-appointed judges, as well as the attorney representing the states suing the administration, “really showed a tremendous lack of understanding of deferred action, as well as prosecutorial discretion.”

“This is most likely going to end up at the Supreme Court,” Hincapie told reporters after the oral arguments ended. “Again, regardless of where this panel, how this panel rules … we’re pretty confident … that implementation is inevitable.”

The lone Democratic appointee on the panel appeared to lean in favor of the administration’s arguments, and gave the lawyer representing Texas and 25 other states suing the administration one of the toughest rounds of questioning.

Judge Carolyn Dineen King, who was appointed by President Jimmy Carter, repeatedly pressed Texas Solicitor General Scott Keller on an argument that the states suing Obama did not want to give immigrants the legal ability to work — even if they were unlikely to be deported.

“You’re not contesting the aliens’ ability to stay here. They can stay,” King told Keller. “What you don’t want them to be able to do is work.”

Keller also insisted to King at one point that a president did not have power to grant deferred action even to individuals – a point Keller later corrected.

The Texas solicitor general contended that executive actions would have a financial impact on the states, since they would have to shoulder the costs for issuing drivers’ licenses, as well as health care and education.

Keller also referred to Obama’s comments in November that “I just took action to change the law” – a phrase that the White House later clarified as Obama speaking colloquially.

“And that’s what precisely DAPA did,” said Keller, referring to the shorthand for the program, Deferred Action for Deferred Action for Parents of Americans. “And the reason it did is because without DAPA, there is no statute or rule that allows the executive to grant lawful presence to the 4.3 [million] potential DAPA beneficiaries.”

The arguments at the New Orleans-based appeals court attracted hundreds of immigrant-rights protesters who have long advocated for the executive actions that could affect the millions here illegally, activists at the scene said. Rep. Luis Gutierrez (D-Ill.), a leading immigration advocate on Capitol Hill, traveled down to the city for oral arguments, and brass band playing in the streets outside interrupted the hearing several times.

Protesters from the Fair Immigration Reform Movement – the nationwide umbrella coalition for an array of immigrant-rights groups – in New Orleans numbered nearly 600, representing 21 states, the group said.

Separately, undocumented immigrant protesters blocked roads in front of the New Orleans offices of Immigration and Customs Enforcement, one of three federal agencies that carry out immigration laws, in what they said was a show of civil disobedience. Fourteen people were arrested but later released, said representatives for the New Orleans Workers’ Center for Racial Justice, which organized the protest.

Meanwhile, legal drama is continuing to play out at the federal courthouse in Brownsville, Texas – where District Judge Andrew Hanen first handed down the decision in February that put Obama’s immigration programs on hold.

Hanen is ordering Homeland Security Secretary Jeh Johnson and other top immigration officials to appear before him in August to explain why the administration keeps issuing work permits for undocumented immigrants under criteria that are currently blocked under Hanen’s order.

The executive actions that Obama announced last November grant three-year work permits to undocumented immigrants who have been here for more than five years and have children who are U.S. citizens or green-card holders. Before that, immigrants who were shielded from deportation by the administration – mostly those who came here illegally as children – only got two-year permits under a 2012 directive from Obama. (The 2012 order is unaffected by Hanen’s ruling.)

But about 2,500 three-year work permits have been issued by the Obama administration even after Hanen’s injunction, infuriating Hanen and the states that have sued. The latest revelations came Thursday, when the administration said in court filings that they found another 500 three-year work permits, in addition to the 2,000 that had already been discovered.

Hanen had said he’d be willing to dismiss his demand for Johnson to appear before him in court if he’s satisfied with the steps that the administration takes to revoke the three-year permits. The Obama administration said in the Thursday court filing that it would file a status report on July 31 about how the government is trying to correct those issues.