A three-judge panel of U.S. Court of Appeals for the Fifth Circuit ruled against President Barack Obama’s amnesty with a late Monday decision that will probably last until after Obama leaves office on Jan. 20, 2017.
Unless Obama convinces the full Fifth Circuit, or the U.S. Supreme Court, to intervene immediately, Obama’s amnesty program is dead.
In November 2014, Obama ordered the U.S. Department of Homeland Security (DHS) to implement a program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
This expanded a 2012 executive program called DACA, under which roughly 1 million foreign-born children and young adults of illegal immigrants would be given “deferred action” status, instead of being deported.
Out of 11.3 million illegal aliens that the government and the courts acknowledge are in the United States (and many experts say the number could be much higher), 4.3 million could stay in the United States indefinitely—perhaps permanently—under the 2014 DAPA directive.
Twenty-six states—led by Texas—sued the United States to prevent DAPA from going into effect, citing significant financial consequences the states would suffer. This is only the second time in American history that a majority of the states of the Union have sued the federal government over a federal law. (The first one was the 2012 Supreme Court case against Obamacare, so Barack Obama has prompted both of these historic cases.)
Federal regulations (or “rules,” to use the legal term) can only be created under the process set forth in the Administrative Procedure Act (APA). With few exceptions, rules must be nationally published in the Federal Register to give the nation notice of what is being considered, then the American public (usually expert industry groups or think tanks) gets a period of time to examine the proposed rules and send to the agency their comments and objections. Then the agency must respond to those objections before it issues final rules that have the force of law.
Obama decided to skip all that with DAPA. Accordingly, the states’ lawsuit makes three claims.
First, at minimum, the states argue that issuing a regulation like DAPA without the notice-and-comment process (because evidently the Obama administration did not want to create a paper-trail of legal objections to its actions) violates the APA, and on that ground alone, DAPA must be set aside.
Second, even if notice and comment were not required, DAPA would still be illegal because it violates the Immigration and Nationality Act (INA). Article I of the Constitution explicitly gives Congress complete authority to define who can enter this country and how a foreigner can become a citizen. In 2013, Obama, plus his progressive and business allies, tried to persuade Congress to change the INA and grant an amnesty, but Congress rejected his proposal in 2014. Rules and regulations can only carry out and implement federal law, never violate federal law.
And third, DAPA is unconstitutional. The Take Care Clause of the Constitution commands of the president that “he shall take care that the laws be faithfully executed.” It requires the president to do his level best to carry out whatever laws Congress passes. Here, Obama doesn’t like Congress’s law and decided to stop enforcing parts of it. The Constitution forbids him from doing so, said the states’ lawsuit.
In response to the lawsuit, U.S. District Judge Andrew Hanen from the Southern District of Texas halted DAPA before it went into effect. He issued a 123-page opinion that explained why the states have standing to sue, and why DAPA violates the notice-and-comment requirements of the APA.
Obama’s Justice Department appealed to the Fifth Circuit in New Orleans, saying that DAPA is merely a system of selectively not enforcing the INA’s deportation process against certain individuals, as a form of “prosecutorial discretion.” No agency has the manpower to fully pursue every lawbreaker, so prosecutors use discretion to go after the higher-priority targets instead of low-priority offenders.
In a 2-1 decision written by Judge Jerry Smith—who was appointed by Ronald Reagan and is deeply respected nationwide by constitutional conservative lawyers—the Fifth Circuit rejected Obama’s arguments with a 135-page opinion. Judge Smith explained:
“Deferred action, however, is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger … eligibility for federal benefits—for example, under … the Social Security Act—and state benefits—for example, driver’s licenses and unemployment insurance—that would not otherwise be available to illegal aliens.”
Illegal aliens in this country under DAPA would qualify for federal welfare, state welfare, and a host of government benefits, including free or reduced-cost healthcare under Obamacare’s expansion of Medicaid and tax subsidies. And once in their sixties, they could retire here with Medicare and Social Security.
The appeals court noted that the second count of the lawsuit—the substantive APA count that DAPA illegally violates the INA—was fully briefed and argued before the district court. But because the trial court had not yet issued any ruling on that question the appeals court would not do so either, it said. And it’s a long-settled rule of judicial restraint that a court never decides a constitutional issue if it can—like here—decide the case on statutory grounds. Having held that DAPA violates federal law, the courts need not decide if it is also unconstitutional.
Quoting a recent Supreme Court case, the Fifth Circuit concluded, “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Congress did no such thing here to authorize Obama and DHS to fundamentally overhaul America’s immigration laws.
Obama’s options are now limited. He can ask the full Fifth Circuit—all 17 judges—to rehear the case en banc, in the hope it will reject this opinion by a three-judge panel. Or he can ask the U.S. Supreme Court to grant a writ of certiorari to review the Fifth Circuit’s judgement.
But time is against him. The cutoff for the Supreme Court taking new cases for the 2015 term—which started in October and will end in June 2016—is mid-January. If he doesn’t file a petition for certiorari within the next few weeks, the High Court could not even hear the case until October 2016, and may not even decide the case before Obama’s replacement is sworn in. The 17-judge en banc process takes months; if Obama goes that route and loses, then there won’t be any time for the Supreme Court to act.
So Obama probably only has time to go for en banc or go to the Supreme Court—not both.
He probably has a better chance before the Supreme Court, so that would be the smarter move. But in doing so, the president risks a massive smack-down that would forever destroy one of his top political priorities. If he doesn’t, however, and lets the preliminary injunction against DAPA stay in effect while a full trial plays out before Judge Hanen, then there aren’t enough days left in his presidency to allow DAPA to go into effect.
The Fifth Circuit’s decision was a terrible defeat for President Obama. He can either give up on executive amnesty altogether, or double-down and take his chances with another appeal.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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