5th Circuit Upholds Injunction on Obama's Amnesty

By Jon Feere, November 10, 2015

President Obama's controversial and lawless amnesty agenda was dealt another setback as the 5th Circuit Court of Appeals refused to remove an injunction put in place by a district court earlier this year. Texas and 25 other states sued to block the Obama administration's plan to extend Deferred Action for Childhood Arrivals (DACA) to more illegal aliens and to grant similar benefits to illegal aliens who have a U.S. citizen or legal resident child through a program called Deferred Action for Parents of Americans (DAPA). The full decision is available online.

With this ruling, a good portion of the Obama administration's controversial amnesty agenda has been blocked and the district court's decision to block it has been upheld. The Obama administration has announced that it will appeal this ruling to the Supreme Court, which may or may not take the case. It appears the Court must decide to take the case by mid-January if it wants to ensure that a decision is made in the current term. There are many variables, however, and South Texas College of Law professor Josh Blackman notes that there is a very tight schedule for filing documents that could determine the Supreme Court's timeframe and that it may depend on how Texas responds.

As to the substance of the decision, the states have sued to prevent the unilateral immigration actions on three grounds. First, they assert that the administration violated the procedural requirements of the Administrative Procedure Act (APA) since the policies did not go through the requisite notice and comment process. Second, the states assert that DHS lacked the authority to implement the program, even if it followed the correct rulemaking process, and that the program is unlawful under the APA. Third, the states argue that DAPA was an abrogation of President Obama's constitutional duty to "take Care that the Laws be faithfully executed."

The 5th Circuit reviewed whether the lower court's ruling on the temporary injunction was rightly decided, and found that it was. The court noted that Obama's amnesty "would have a major effect on the states' fiscs [sic], causing millions of dollars of losses in Texas alone". The court also noted that the program affects the states "interests by imposing substantial pressure on them to change their laws, which provide for issuing driver's licenses to some aliens and subsidizing those licenses." The court was not persuaded by the administration's argument that the costs would be offset by benefits to the state of Texas. The court noted that the analysis on standing should not be an accounting exercise and that ultimately Texas had shown injury that is traceable to DACA. After walking through the administration's arguments, the court held "The states have standing."

The court also took issue with the administration's claim that the president has prosecutorial discretion on immigration enforcement and that the states and the courts have no right to intervene. The court rightfully noted that "the states have not challenged the priority levels" created by the administration, and then pointed out that deferred action "is much more than non-enforcement" because it would confer eligibility for both state and federal benefits. The court explained:

Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change. Regardless of whether the Secretary has the authority to offer lawful presence and employment authorization in exchange for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.

The court noted that the administration can continue to enforce (or not enforce) immigration law as it chooses since that prioritization scheme was not the issue before the court. The court explained that "DAPA was enjoined because the states seek an opportunity to be heard through notice and comment", a process that the Obama administration ignored.

Ultimately, the Court determined that Texas had established a substantial likelihood of success on its claim that DAPA must be submitted for notice and comment, demonstrated a substantial threat of irreparable injury if the injunction is not issued, and that the threatened injury (to the states) if the injunction is denied outweighs any harm that will result (to the Obama administration) if the injunction is granted.

As to the public interest inquiry a court must do when looking at an injunction (by weighing the competing interests of the plaintiff and the defendant), the court held that the "public interest easily favors an injunction", noting that "the states refer to the public interest in protecting separation of powers by curtailing unlawful executive action" and that although the administration "cites the public interest in maintaining separation of powers and federalism by avoiding judicial and state interference with a legitimate executive function, there is an obvious difference: The interest the government has identified can be effectively vindicated after a trial on the merits", but the "interest the states have identified cannot be, given the difficulty of restoring the status quo ante if DAPA were to be implemented."

This is a political effect of which the Obama administration is well aware; their goal was to get the DACA extension and DAPA in place and start issuing benefits (work permits, Social Security accounts, etc.) so that they would not be easily reversed. It would be difficult both politically and administratively to retrieve millions of documents.

There is much more in the case and a lengthy dissent, all of which can be read here. But the main point is that a good chunk of the Obama administration's controversial amnesty agenda has been blocked and the district court's decision to block it has been upheld by the 5th Circuit Court of Appeals.

Media outlets and the court have described how the DACA and DAPA programs are meant to operate, noting that applicants must meet certain criteria. But the program before the court was an extended version of DACA, its terms having been changed by the Obama administration so that more illegal aliens might qualify. The point is that lawless policymaking like this will always result in a policy with terms and conditions that can change on a whim. This is why I've written previously that Obama's immigration plan isn't worth the paper it's printed on. For example, though the original DACA resulted in a renewable two-year amnesty, the court blocked Obama's new scheme, which extends the period to three years. If not permanently stopped by the courts or Congress, Obama and future presidents could simply extend it to four years, or five years, or 15 years. This is the nature of lawless, unilateral decrees like DACA.