Federal appeals court to take up Obama's executive action on immigration

On Friday, government lawyers will ask the Fifth Circuit Court of Appeals to allow the president's executive action on immigration to move forward while a legal challenge filed by 26 states works its way through the courts.

Yvette Vela/The Brownsville Herald/AP
Yvette Salinas, with L.U.P.E chants "Education not Deportation" into a megaphone March 19 outside of the federal courthouse in Brownsville, Texas. US District Judge Andrew Hanen last month issued an injunction against Obama's plan in February and reaffirmed his preliminary injunction in an order released last week. The president's plan would spare from deportation up to 5 million people in the US illegally.

Government lawyers are asking a federal appeals court to allow President Obama’s controversial executive action on immigration to move forward while a legal challenge to the president’s initiative works its way through the courts.

Justice Department lawyers are presenting arguments on Friday in New Orleans to a three-judge panel of the Fifth US Circuit Court of Appeals.

They are urging the judges to overturn a preliminary injunction issued in February by a federal judge in Texas that blocked the president’s effort to bypass Congress and unilaterally allow more than 5 million undocumented immigrants to remain in the US and obtain work permits.

Ultimately at issue in the lawsuit is whether the president is acting legally and within his constitutional powers in carrying out the executive action on immigration he announced last November. The immediate subject of Friday’s hearing, however, is whether the injunction should be lifted to allow the programs to move forward.

Republicans charge that Mr. Obama is usurping legislative powers the Constitution assigns exclusively to the legislative branch. The Obama administration replies that immigration law grants federal agencies broad prosecutorial discretion to shape and focus its law enforcement efforts.

Federal officials say that with limited money budgeted for immigration enforcement, they must set priorities to find and deport immigrants in the country illegally who pose a threat to national security or public safety.

To help free up resources to focus on the most dangerous, the administration is offering special immigration status to more than 5 million individuals who entered the US illegally or overstayed their visa and would otherwise be facing deportation.

Government lawyers say that the nationwide injunction is interfering with the agency’s ability to pursue its immigration priorities.

Texas and 25 other states filed the lawsuit challenging the president’s executive action. They are asking the appeals court to leave the temporary injunction in place.

Lawyers for the states dispute that the injunction interferes with the administration’s immigration enforcement discretion. They say federal officials may continue to identify those undocumented immigrants who are considered a threat to public safety – and continue to deport them – despite the injunction.

Friday's hearing is expected to draw demonstrations outside the courthouse by supporters of the president’s immigration initiative.

“We need to be present to voice our support of executive action,” Nora Sandigo, of the Miami-based group American Fraternity, said in a statement.

“Immigrant families need relief,” she said.

The federal judge in the case, US District Judge Andrew Hanen, reaffirmed his preliminary injunction in an order released last week.

Judge Hanen said the Obama administration had “abdicated enforcement” of key portions of federal immigration law. He said comments made by the president at a town hall meeting in February supported this conclusion.

In response to an individual’s complaint about continued deportations by the US government, Obama said there may be immigration officials who aren’t “paying attention to our new directives.”

Anyone who wasn’t following the administration’s priorities, Obama said, would face “consequences.”

Hanen said the comments show that the administration is ignoring existing federal immigration laws and instead enforcing a set of administration-favored policy directives.

“The Chief Executive has ordered that the laws requiring removal of illegal immigrants that conflict with the [president’s 2014 executive action on immigration], are not to be enforced, and that anyone who attempts to do so will be punished,” Hanen wrote.

“This is not merely ineffective enforcement,” the judge said. “This is total non-enforcement, applicable to millions of people.”

The judge continued: “This is an order by the President to not enforce the law as to approximately 4.5 million people – the rough equivalent of the population of Louisiana, and a population larger than the populations of 25 of the 50 states.”

In a related order, the judge criticized government lawyers for making statements that he said were “misleading” and “disingenuous” during earlier hearings.

The issue is over whether the government was fully truthful when Hanen asked if there were any aspects of the Obama immigration policy that were set to be implemented before the judge was to rule in February on the requested injunction.

The government said no. Later it turned out that, in fact, 108,000 individuals, who already had been granted deferred immigration status under a 2012 program, had been granted a three-year extension. The government at key points remained silent on this fact, the judge said. 

“Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life; but in the courtroom, when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable,” the judge wrote in an extraordinary rebuke to Justice Department lawyers.

The judge said under different circumstances such misrepresentations might prompt him to rule automatically for the opposing side.

“The Court, however, finds that the issues at stake here have national significance and deserve to be fully considered on the merits by the Fifth Circuit Court of Appeals and, in all probability, the Supreme Court of the United States,” Hanen wrote.

Such fiery criticism released days before an important appeals court argument marks a significant setback for the government.

A Justice Department lawyer sent a two-page letter to the appeals court judges seeking to reply to the judge’s comments. It says Hanen misconstrued the president’s comments at the town hall meeting. 

The lawyer, Scott McIntosh, said Obama was only saying that immigration officials – like all federal employees – are required to comply with their own agency’s policies.

Mr. McIntosh also denied that government lawyers misled the judge on the 108,000 three-year extensions. He said the judge’s suggestion was “incorrect and unwarranted.”

How the appeals court will view this background dispute is unclear. Some analysts are already predicting that the administration faces an uphill fight, given the composition of the three-judge panel assigned to the case. The three judges include appointees of Ronald Reagan, George W. Bush, and President Obama.

The case is State of Texas v. United States of America (15-40238.)

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