A federal appeals court on Monday agreed to keep on hold President Barack Obama's executive order on immigration -- nearly a year after he announced it as a backstop measure to Congress' failure to enact comprehensive immigration reform.
The divided, 124-page ruling deals a blow to the administration's Deferred Action for Parental Accountability program, known as DAPA, and there may be just enough time for a formal appeal to the Supreme Court to be resolved ahead of the 2016 election.
In ruling against the government, the U.S. Court of Appeals for the 5th Circuit largely agreed with a lower court judge, who in February issued a “nationwide injunction” that effectively stopped DAPA from taking effect, and concurred that Texas and other states that sued the president over the program had legal “standing” to challenge its constitutionality in federal court.
The appeals court accepted Texas’ argument that an expansion of immigration relief to include a wider class of undocumented immigrants would cause the state to “incur significant costs in issuing driver’s licenses to DAPA beneficiaries” -- a basic “harm” requirement for any litigant seeking standing to sue.
“If permitted to go into effect, DAPA would enable at least 500,000 illegal aliens in Texas to satisfy that requirement with proof of lawful presence or employment authorization,” wrote U.S. Circuit Judge Jerry Smith for the 2-to-1 appeals court. “Texas subsidizes its licenses and would lose a minimum of $130.89 on each one it issued to a DAPA beneficiary. Even a modest estimate would put the loss at several million dollars.”
The court rejected the federal government's argument that extending relief to a wide swath of immigrants would offset the injury to the state by bringing in increased tax revenue and other benefits. A study by the Center for American Progress estimated DAPA, if implemented, would benefit up to 3.7 million individuals.
"Once an injury is shown, no attempt is made to ask whether the injury is outweighed by benefits the plaintiff has enjoyed from the relationship with the defendant," Smith reasoned. "Standing is recognized to complain that some particular aspect of the relationship is unlawful and has caused injury."
Writing in dissent, Judge Carolyn Dineen King questioned whether the court's ruling failed to "articulate a standard or a rule that can be applied by lawyers and judges in future cases," and compared it to a "railway ticket decision -- good only for this day and season."
"Today’s decision is either just such a 'railway ticket' ... or a broad, new-fangled concept of state standing with little instruction going forward," King wrote.
King also took issue with the court's untimeliness in deciding the case, which potentially affects the administration's ability to appeal to the Supreme Court.
"I have a firm and definite conviction that a mistake has been made," she wrote. "That mistake has been exacerbated by the extended delay that has occurred in deciding this 'expedited' appeal. There is no justification for that delay."
Based on how the high court accepts and decides cases on appeal, advocates and experts have warned that undue delays from the 5th Circuit would foreclose administration lawyers from appealing the ruling in time before Obama leaves office -- which in turn leaves the fate of DAPA in the hands of his White House successor.
But supporters of Obama's immigration policies said there's still time for the Supreme Court to get involved.
"The Supreme Court recognized just three and a half years ago that a principal feature of the removal system is the broad discretion exercised by immigration officials, including whether it makes sense to pursue removal at all," said a statement from Brianne Gorod, an appellate lawyer with the liberal Constitutional Accountability Center, which filed a brief in the Texas case. "The Supreme Court should reaffirm that principle, recognizing that the president’s immigration initiative is simply an exercise of that lawful discretion, and allow the program to be implemented immediately."
The ruling asserts that "the separation of powers remains the law of the land, and the president must follow the rule of law, just like everybody else,” Texas Attorney General Ken Paxton said in a statement. “Throughout this process, the Obama administration has aggressively disregarded the constitutional limits on executive power, and Texas, leading a charge of 26 states, has secured an important victory to put a halt to the president’s lawlessness."
For advocates, like the National Immigration Law Center's Maria Hincapié, a swift appeal would bring some ease to those most affected by the uncertainty over the DAPA program.
"Immigrant families and their U.S. citizen children have been waiting anxiously for the 5th Circuit to rule," Hincapié told Politico. "Now, we call on the DOJ to seek [review] before the Supreme Court immediately where we are more likely to obtain justice for our communities."
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