Obama Judge Cites America’s ’Complicated History’ of Racism and Xenophobia In Fifth Circuit Dissent

AP Photo Ross D. Franklin

Justice Stephen Higginson, the lone dissenter of the Fifth Circuit Court decision to deny the Obama administration’s appeal to lift a stay of his executive amnesty, cited the country’s supposed history of racism and xenophobia in his dissenting opinion.

“On the expedience of immigration measures, sensible things can be said on all sides, mindful that our country is an immigrant society itself,” he wrote in his conclusion, including a footnote to a book by Judith Shklar on citizenship.

“Over twenty years ago, Judith Shklar observed in her book American Citizenship, aptly subtitled ‘The Quest for Inclusion,’ that the United States has an ‘extremely complicated’ history of exclusions and inclusions, in which xenophobia, racism, religious bigotry, and fear of alien conspiracies have played their part,” the footnote read.

Higginson was appointed by Obama to the Fifth Circuit court of appeals in 2011. The federal appeals court decision was 2-1; denying the Obama administration appeal.

In an earlier statement, the White House recognized Higginson’s dissent as a “powerful” argument why Obama’s executive amnesty was “fully consistent with the law.”

At this point, the White House has not decided whether or not to appeal the decision through a higher court.

Citing the “political” nature of the dispute, Higginson explained in his dissent that the number of political officials both sides of the lawsuit helped make it clear that they should not allow the court to intervene in the execution of Obama’s executive order, referring to the stay issued by a Texas judge.

“I would not affirm intervention and judicial fiat ordering what Congress has never mandated,” he concluded.