A panel of the U.S. District Court of Appeals for the Fifth Circuit has refused to remove an order that blocks the President from implementing his executive amnesty program, which would prevent deportations and grant work permits to millions of illegal immigrants. The federal appellate court also declined to narrow the injunction’s scope to Texas, or the other plaintiffs’ states.
The three judge panel of the Fifth Circuit consisted of Judges Jerry Smith, Jennifer Walker Elrod, and Judge Stephen Higginson, an Obama appointee. Smith and Elrod found against the federal government and denied its request to stay the injunction, while Higginson wrote a dissent saying the government’s actions were lawful.
Using the standards on appeal for reviewing the issuance of an injunction, the majority ruled that “the government is unlikely to succeed on the merits of its appeal,” and the Obama Administration had not shown that it would be harmed if the injunction remained. The judges also found that the public interest weighed against granting a stay of the injunction, and that other parties interested in the proceeding would be substantially injured.
The court ruled that the Obama Administration is not likely to prevail in the case because it most likely broke the law in taking action to grant amnesty from deportation. The program, Deferred Action for Parental Accountability (DAPA), is a binding policy that must go through the usual public notice and comment period, which did not occur. The President and the Secretary of the Department of Homeland Security (DHS) unilaterally announced they would implement the policy. The government’s main argument was that DAPA was simply a policy statement.
The appellate court also rejected the federal government’s arguments that the permanent injunction restricts DHS’s ability to protect the United States and secure the borders.
The government’s argument that the injunction offends the separation of powers and federalism was answered by asserting the resolution of the case on its merits, not whether the injunction is stayed pending appeal, would be relevant to those concerns.
The Court also found that issuance of the stay would substantially injure the states, particularly Texas. A stay would allow DAPA beneficiaries to apply for driver’s licenses and other benefits, and Texas has at least 500,000 potential beneficiaries.
Although requested by the federal government, the Fifth Circuit judges refused to confine the injunction to Texas or the plaintiff states on the ground that “partial implementation of DAPA would undermine the constitutional imperative of ‘a uniform Rule of Naturalization’ and Congress’ instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’”
The panel continued, “There is a substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states.”
The Court held that “as a prudential matter, if the injunction is stayed but DAPA is ultimately invalidated, deportable aliens would have identified themselves without receiving the expected benefits.” Moreover, the “injunction merely maintains the status quo while the court considers the issue, a stay pending appeal is far from justified.”
The 42 page majority, and 25 page dissenting opinion, is attached to this link.
Texas Governor Greg Abbott issued the following statement after the Fifth Circuit decision:
“President Obama abdicated his responsibility to preserve and protect the United States Constitution when he issued this executive action, and after months of obfuscation and stall tactics by his Administration, victory for the Constitution has been awarded and the Rule of Law restored. We live in a nation governed by a system of checks and balances, and the President’s attempt to bypass the will of the American people was successfully checked again today. I am pleased the Court of Appeals preserved the injunction against President Obama’s unlawful action and recognized the fundamental principles upon which our nation was founded.”
In a statement obtained by Breitbart Texas, Lieutenant Governor Dan Patrick said, “I applaud today’s federal court ruling once again telling President Barack Obama his executive action attempt to grant legal status to as many as 5 million immigrants is illegal and unconstitutional. In essence the appeals court judges told the President to quit wasting time trying to circumvent the law.”
“Mr. President – please follow the law and reverse your illegal executive action now,” the Lieutenant Governor urged.
“I welcome all immigrants to Texas and to the United States of America, but we stand in unison with millions of hard working men and women who agree that entry to our borders must be done legally and in accordance with the law of the land, not political agendas or expediency,” Patrick continued. “National security starts with border security and border security begins in Texas.”
The White House reacted by criticizing the ruling, as reported by Breitbart News.
“Today, two judges of the Fifth Circuit chose to misinterpret the facts and the law in denying the government’s request for a stay,” White House spokesperson Brandi Hoffine said in a statement to Breitbart News.
Hoffine cited the dissent from Judge Higginson, who was appointed by President Obama. “As the powerful dissent from Judge Higginson recognizes, President Obama’s immigration executive actions are fully consistent with the law,” she said.
Describing Obama’s executive action as an effort to bring “accountability” to the nation’s immigration system, Hoffine insisted that the president had the authority to issue amnesty to a group of illegal immigrants. “They are squarely within the bounds of his authority and they are the right thing to do for the country,” she said.
The Obama Administration can appeal the panel’s denial of its motion to set aside the permanent injunction to the Fifth Circuit sitting en banc (all of the judges), or to the U.S. Supreme Court.
The federal government could also decide to appeal after the litigation in Judge Hanen’s court has been completed.
It is more likely that the federal government will appeal to the United States Supreme Court.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. Follow her on Twitter @LanaShadwick2