The White House accused a federal appeals court of “misinterpreting the facts and the law” on Tuesday after it dealt a potentially devastating blow to Barack Obama’s hopes of granting legal status to millions of undocumented immigrants before he leaves office.

Lawyers for the department of justice had sought an immediate stay against an earlier decision by a lower court in Texas that froze the programme after it was challenged by a number of Republican-controlled states.

But Tuesday’s ruling by the US fifth circuit rejected the request for a stay, forcing the programme to remain mothballed while the administration continues the lengthy process of legal appeals.

If the fifth circuit maintains its opposition when it considers the merits of the original appeal as well, the DOJ would have little choice but to take the case to the supreme court – a process that may not conclude until next June.

The ruling is of particular concern to immigration reform campaigners because many were hoping that Obama’s decision to overcome congressional deadlock on the issue by employing executive action would result in legal status for some 5 million undocumented immigrants that would be politically impossible for a future administration to reverse.

“This is a politically motivated attack and the consequences for our communities are devastating,” said Marielena Hincapie, director of the National Immigration Law Center. “Everyone was in shock at this decision; the news will spread like wildfire.”

White House officials clung to the fact that one of the three federal judges who heard the appeal for a stay had dissented from the decision on the grounds that Obama was right to exercise executive action in this way.

“Today, two judges of the fifth circuit chose to misinterpret the facts and the law in denying the government’s request for a stay,” said spokesperson Katherine Vargas.

“As the powerful dissent from Judge [Stephen] Higginson recognises, president Obama’s immigration executive actions are fully consistent with the law. The president’s actions ... are squarely within the bounds of his authority and they are the right thing to do for the country.”

The administration’s argument is that other presidents have also sought to exercise discretion in the application of immigration rules.

“Deferred action has existed for half a century, reflected in longstanding regulations as an act of administrative convenience and recognized by the Supreme Court as an appropriate exercise of the Executive’s removal discretion,” wrote judge Higginson in his dissent.



“I would hold that the underlying issue presented to us – the order in which non-citizens without documentation must be removed from the United States – must be decided, presently is being decided, and always has been decided, by the federal political branches.”

Nonetheless, administration officials said the DoJ was “evaluating the ruling and will consider any appropriate next steps while its appeal of the preliminary injunction proceeds on an expedited basis in the fifth circuit”.

The states suing to block the plan, led by Texas, argue that Obama acted outside his authority and that the changes would force them to invest more in law enforcement, healthcare and education. But the White House has said the president acted within his powers to fix a “broken immigration system”.



US district judge Andrew Hanen sided with the states and, from his court in Brownsville, Texas, issued a temporary injunction on 16 February to block the plan from taking effect while the lawsuit works its way through the courts.

Justice department lawyers argued that keeping the temporary hold interfered with the homeland security department’s ability to protect the US and secure the nation’s borders. They also said immigration policy is a domain of the federal government, not the states.

But, in Tuesday’s ruling, fifth circuit judges Jerry Smith and Jennifer Walker Elrod denied the stay, saying in an opinion written by Smith that the federal government lawyers are unlikely to succeed on the merits of that appeal.

Obama announced the executive action in November, saying lack of action by Congress forced him to make sweeping changes to immigration rules on his own. Republicans said Obama overstepped his presidential authority.

The first of Obama’s orders – to expand a program that protects young immigrants from deportation if they were brought to the US illegally as children – was set to take effect 18 February. The other major part, extending deportation protections to parents of US citizens and permanent residents who have been in the country for some years, had been scheduled to begin 19 May.

Hanen issued his injunction believing that neither action had taken effect. But the justice department later told Hanen that more than 108,000 people had already received three-year reprieves from deportation as well as work permits. Hanen said the federal government had been “misleading”, but he declined to sanction the government’s attorneys.

The justice department has also asked the fifth circuit to reverse Hanen’s overall ruling that sided with the states. A decision on that appeal, which will be argued before the court in July, could take months.

Along with Texas, the states seeking to block Obama’s action are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin.