Thread: Court chilly to Barack Obama immigration moves

By Josh Gerstein
4/17/15 9:31 PM EDT

There were few positive signs for the White House Friday as President Barack Obama’s latest executive actions on immigration were debated in front of a federal appeals court.

During more than two hours of oral arguments before the 5th Circuit U.S. Court of Appeals in New Orleans, Obama’s own statements about his immigration moves were used by a Republican-appointed judge to put a Justice Department lawyer on the defensive.

And the sole Democratic appointee on the three-judge panel repeatedly argued for the legality of the president’s actions by turning to an argument that the administration fears could discourage illegal immigrants from applying for programs that offer them quasi-legal status and work permits.

By the time the court session wrapped up, it appeared likely the appeals judges will rule, 2-1, against the administration’s request for a stay of a district court injunction barring Obama from going forward with an expansion of a program offering quasi-legal status to illegal immigrants who came to the U.S. as children and with a new program offering the same benefits to illegal immigrant parents of U.S. citizens.

That means the Supreme Court could field a request from the Obama administration within weeks for the authority to go ahead with Obama’s latest round of immigration moves while the lawsuit 26 states filed challenging those actions plays out in the courts.

The Obama administration contends that the programs — officially known as Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) — are lawful exercises of prosecutorial discretion. Texas and other states suing over the moves say that only Congress can authorize the kind of sweeping actions Obama took.

At the arguments Friday, Judge Jennifer Elrod suggested that Obama undermined the federal government’s claims that immigration officials retain case-by-case discretion when he told a televised town hall meeting in Miami in February that there would be consequences for government employees who ignored his directives to grant deferred action to those who are eligible.

“When he says if you file this you will get relief, when he gives affirmative statements that you are entitled to the relief … are those just general, what we would say in other contexts, puffery?” Elrod asked, adding, “I mean no disrespect to the president by saying that.”

Justice Department lawyer Ben Mizer said Obama’s comments “have to be taken in context” and insisted they were not at odds with the federal government’s arguments that immigration officers have the right to deny deferred action status in any case.

“All the president said in that statement taken in context is … that subordinates are bound by what their superiors tell them. But the president in no way countermanded the guidance that is actually being challenged in this case,” Mizer said.

However, Judge Stephen Higginson cautioned Friday that the courts could create chaos in the government if they conclude that any time agency officials closely follow an internal directive it has to be made into a formal regulation that’s subject to notice-and-public-comment.

“If what we’re saying here is ‘we’ve looked at the data and the government officers are largely adhering to their own criteria, therefore the guidelines are invalid, really, it’s a secret rule,’ that’s a very perverse legal incentive,” Higginson warned. “That’s a dangerous rule for us to try to write.”

Most of the support for the the administration’s stance came from Higginson, an Obama appointee who repeatedly questioned the rationale U.S. District Court Judge Andrew Hanen offered for blocking the immigration actions the administration announced last November.

Hanen’s ruling turned not on Obama’s statutory or constitutional power to make his immigration moves, but on the administration’s failure to put them through a formal notice-and-comment period required when the government sets rules that impact individuals or businesses.

Higginson suggested that Hanen was wrong to conclude that evidence of how the administration carried out its initial relief for so-called Dreamers offered in 2012 dictated the manner in which the new round of actions would be administered.

“The pool is different and the program is different,” Higginson said, adding that the differences “call, in my mind, in doubt the extrapolation going on.”

But on about a half dozen occasions the Obama-appointed judge also suggested that one reason to view the program as a form of prosecutorial discretion was because it enticed illegal immigrants to come out of the shadows and left open the possibility they could be tracked down and deported later.

“The first step toward removing them is getting them into the database,” Higginson said. “It is scary for them. It is precarious to identify … They’re even telling us where they are. We’re finding the fugitives.”

The argument is an awkward one for the administration because, at least until Hanen’s injunction, administration officials and their allies had been encouraging illegal immigrants eligible for the programs to come forward. However, the judge noted that there’s no legal reason why a future administration could not cancel the programs or use the data from them to pursue deportations new enforcement priorities.

Higginson also raised another point that may not sit well with some immigrant-rights activists by noting that the record number of deportations the Department of Homeland Security has carried out in recent years undermined contentions that the administration is shirking its duty to get illegal immigrants out of the country.

“Why wouldn’t that same fact this agency is removing more [people] than ever before be relevant to the district court’s conclusion that the agency was acting pretextually?” the judge asked.

Judge Jerry Smith, who has drawn headlines for clashing with Justice Department lawyers in other cases, did no bombthrowing Friday. In fact, he took a back seat at the argument, leaving Elrod and Higginson to do most of the verbal sparring with the lawyers for the two sides.

In his few comments, Smith did seem inclined against the administration, however. He pointed repeatedly to a 2007 Supreme Court ruling in which the justices held, 5-4, that states had standing to sue the EPA over its decision not to regulate greenhouse gases. That decision “may be key” to the outcome of the immigration litigation, the Reagan appointee said.

The states challenging Obama’s immigration actions say they have standing because they will incur costs from the millions of deferred action grants the administration is planning, including the costs of issuing drivers licenses to the immigrants accorded “legal presence” under the new policies.

However, Mizer said the states’ claims would mean they could sue over virtually any immigration policy change or even over the handling of specific cases.

“That can’t possibly be right,” the Justice Department lawyer said. “If Texas is right, then they could challenge an individual decision to grant asylum status to an individual who resides in Texas if that individual goes and seeks a drivers’ license.”

Texas Solicitor General Scott Keller insisted there was no way states would litigate such disputes.

“This parade of horribles is not going to happen,” he declared.

Keller focused his arguments largely on the fact that this appeals court panel is supposed to focus on whether to stay Hanen’s order. The administration’s appeal of the judge’s order is to be decided later, likely by another 5th Circuit panel.

“DAPA would be one of the largest changes in immigration policy in our nation’s history,” Keller said. “Any injury that the executive could show would not outweigh the irreversible harm of changing the status quo by allowing DAPA to go into effect.”

Elrod, a George W. Bush appointee, seemed persuaded that maintaining the status quo meant keeping the executive actions on hold while the litigation plays out.

“We’re big about the status quo,” Elrod said. “It appears the Supreme Court may be big about [preserving] the status quo in the middle of cases.”

The judge also asked how work permits and tax benefits could be retrieved if the programs go forward and the courts ultimately rule them illegal. Immigrants approved for the programs “could end up with a big check and you’d need to knock on their door and ask for it back,” she said.

Mizer called that prospect “attenuated” and said it was doubtful that individuals could collect tax credits before the courts have ruled on the legality of Hanen’s injunction.” There are a lot of hoops that an individual had to jump through,” he said.

The arguments at the 5th Circuit’s headquarters drew a crowd of demonstrators who back Obama’s executive actions. At times, their chants and shouts could be heard in the courtroom where the arguments took place, a recording of the session shows.

Smith, the Houston-based judge who presided over the session, chalked up the noise to the Big Easy’s reputation for street parties.

“It’s rowdy folks outside,” he said. “It’s cruel and unusual punishment to have to argue on Friday afternoon in New Orleans.”

http://www.politico.com/story/2015/0...es-117104.html

No one mentioned about the Americans who are and will lose jobs and livelihoods to illegal aliens being handed work permits by Obama Amnesty or taxpayers underwriting more taxes and more debt to fund tax credits, welfare, education and health care for illegal aliens granted permission to remain if this goes through and how the government can or will compensate those for their losses if the amnesty is stopped?

Gee .....

It doesn't seem to matter who, what, when or where, Americans are left out of the debate or commentary with our interests completely ignored. We're just left holding the bag paying everyone's big salary as they talk over, around and under US as if we didn't exist.

Lets hope for a 2 to 1 decision from the 5th Circuit to uphold Hanen's ruling.

Judge Smith's comment that closes tis article migh indicate that the hell raising demonstrators did not assist in getting themselves a favorable ruling. That is amusing.

Too bad they didn't arrest the demonstrators for disturbing the peace!

Originally Posted by Mayday

Too bad they didn't arrest the demonstrators for disturbing the peace!

Too bad they didn't arrest the illegal aliens for violating US immigration law.