Outside the Beltway

Obama Administration’s Immigration Executive Action Suffers Another Court Defeat

President Obama's executive action on immigration suffered another setback in court late yesterday.

Doug Mataconis · Tuesday, November 10, 2015 · 16 comments

President Obama’s executive actions intended to provide immigration relief to a certain groups of people, enacted nearly a year ago in the wake of the 2014 elections and Congress’s failure to act quickly enough in President Obama’s opinion, have suffered another Court defeat:

A federal appeals court on Monday ruled against President Obama’s plan to shield up to 5 million undocumented immigrants from deportation, dealing another blow to the administration’s effort to remake immigration laws and likely setting up a final battle in the Supreme Court next year.

The 2-to-1 ruling from a panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans — to uphold a lower court’s injunction that blocks the administration from implementing a ­deferred-action program — was not unexpected. It came several months after the same court had denied an emergency stay request from the Justice Department.

The decision means that one of Obama’s signature immigration initiatives remains on hold nearly a year after he announced it through executive action and leaves in doubt whether the program will begin before his term expires in January 2017. Republican presidential candidates have pledged to dismantle the program, creating additional urgency within the Obama administration to get it started.

“The president must follow the rule of law, just like everybody else,” Texas Attorney General Ken Paxton said in a statement Monday. Texas led a coalition of 26 states that brought the lawsuit. “Throughout this process, the Obama Administration has aggressively disregarded the constitutional limits on executive power.”

Immigration advocates, who feared time was running out to get the case before the high court next year, called on the administration to appeal quickly and maintained confidence that the Supreme Court would issue a favorable ruling by next June.

“Every single day that goes by means further delays,” said Marielena Hincapié, executive director of the National Immigration Law Center, who has closely followed the case. “Once the green light is given [by the Supreme Court], it will make it that much more difficult for any administration, Republican or Democrat, to undo the program.”

A White House official said the administration strongly disagreed with the court decision and was reviewing its legal options.

“This lawsuit is preventing people who have been part of our communities for years from working on the books, contributing to our economy by paying taxes on that work, and being held accountable,” said the official, who was not authorized to speak on the record.

Politico has more on the decision:

A federal appeals court has rejected President Barack Obama’s effort to move forward with a series of executive actions he announced last year seeking to give quasi-legal status and work permits to millions of illegal immigrants.

The 2-1 ruling Monday from the New Orleans-based 5th Circuit is a defeat for the Obama administration, but one that may have come just in the nick of time to give the Supreme Court the chance to revive Obama’s attempt to make it easier for many immigrants who entered the U.S. illegally to live and work here.

The timing of the appeals court’s decision had become of increasing concern to the Obama administration and immigrant rights’ groups in recent weeks.

Obama’s latest round of executive actions have been on hold since February and delay in the issuance of the appeals court’s ruling was raising doubt about whether the Supreme Court would have an opportunity to resolve the case in time to allow Obama to move forward with the programs before leaving office.

The release of the 5th Circuit decision Monday appears to allow the Supreme Court enough time to take up the dispute this term, if the justices choose to wade into the issue. A favorable Supreme Court ruling would permit the administration to implement the executive actions next summer.

The 5th Circuit agreed in March to hear the appeal on an expedited basis, and the case was argued July 10. The court’s website says decisions are normally expected about 60 days after argument. The dissenter on the three-judge panel, Judge Carolyn King, complained that the appeals court’s ruling had been unreasonably delayed.

“I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay,” wrote King, an appointee of President Jimmy Carter.

(…)

U.S. District Court Judge Andrew Hanen’s February order blocking the actions nationwide was issued on a fairly technical ground: that the changes to immigration procedures were so significant that the administration needed to put them out for official notice and comment before moving forward.

The judge acted on a lawsuit brought by Texas and 25 other states claiming they would be adversely affected by Obama’s actions.

The new appeals court opinion praised Hanen’s ruling, calling it “impressive and thorough.”

The federal government argued that Texas and the other states failed to show the kind of concrete damage needed to bring the suit and that the executive action Obama took did not amount to a policy change that required formal rulemaking. Texas said it would incur millions of dollars in costs to issue drivers’ licenses to those covered by Obama’s orders. However, Judges Jerry Smith and Jennifer Elrod rejected the Obama administration’s claims that other financial benefits to the states wiped out those costs for legal purposes.

“The states have alleged an injury, and the [federal] government predicts that the later decisions of DAPA beneficiaries would produce offsetting benefits. Weighing those costs and benefits is precisely the type of ‘accounting exercise…’ in which we cannot engage. Texas has shown injury,” Smith wrote in a 70-page opinion joined by Elrod. Smith is an appointee of President Ronald Reagan; Elrod was appointed by President George W. Bush.

The 5th Circuit opinion actually goes further than Hanen’s, holding not just that procedural rules were shortcut, but that Obama and Secretary of Homeland Security Jeh Johnson lacked the legal authority for their actions. Smith said the Immigration and Naturalization Act simply doesn’t confer the power the administration is claiming.

“Even with ‘special deference’ to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization,” Smith wrote.

For those who look at the way the Federal Judiciary operates from a political perspective, the outcome of this appeal probably does not come as much of a surprise. Thanks largely to the fact that there have been fewer retirements from the Circuit than might otherwise be expected, the Fifth Circuit remains one of the Circuit Courts of Appeal that President Obama’s appointments have had very little impact on even six years into his Presidency. Of the fifteen active judges on the Court, ten were appointed by Republican Presidents, including four Judges who were appointed by President Reagan as far back as 1982 and six appointed by President George W. Bush. The remaining five were appointed by Democratic Presidents, including two by President Clinton and three by President Obama. Most of the seven Senior Judges, who are generally used to fill out a three-Judge panel when necessary, are also Republican appointees left over from both the Reagan and George H.W. Bush Administrations. What this means is that the odds are that an appeal to the Fifth Circuit is more likely to be heard by a panel dominated, in whole or in part, by Judges appointed by Republicans than not, and that it would be unusual for any panel to not have at least one Republican on the panel. (Source)

Leaving aside that blatantly political analysis of what happened in this ruling, though, it’s hard not to characterize this as a major defeat for the Administration.

As with the last ruling from the Fifth Circuit on the President’s most recent immigration plan, it’s worth noting that this is not a final ruling on the merits of the state’s claims against the Administration, nor is it anywhere close to being the end of the case. What the Court was ruling on here was the Federal Government’s appeal of the stay that was placed on the implementation of the President’s plan pending the a trial on the merits, briefing, and argument in the District Court regarding the state’s arguments against the executive action that the President Obama announced last November. That doesn’t mean the ruling is insignificant, though, because when Federal Court’s review an application for a stay, or an appeal of such a stay, one of the most important elements that gets considered is the likelihood that the underlying claim would be successful. On this point, the District Court Judge, the Fifth Circuit panel that ruled on an initial effort to overturn the stay back in May, and this panel, all agreed that there was a “substantial likelihood” that the state’s would be successful on the merits of their claims, although there was some disagreement about how far that likelihood extended. The one common point between all three rulings, for example, is that the state’s claims that the Administration failed to comply with the provisions of the Administrative Procedure Act, which generally required a notice and comment before rules are implemented or changed by Federal agencies. This ruling appears to go a step further than that in addressing the merits of the Separation of Powers and other arguments that the states raise in their appeals, which is significant because, while the APA arguments could theoretically by cured by the Administration simply complying with its provisions an adverse ruling that says that the President lacked the authority to implement the new rules at all would, unless overturned by the Supreme Court, be fatal.

In terms of the legal status of the case, things could now potentially move forward on two tracks. On the one hand, the District Court litigation is apparently continue to move forward toward a ruling on the merits of the state’s claims in the underling case, although the outcome of that case seems to be certain given the strong language that the trial judge used in his initial rulings on the Preliminary Injunction that was before the Fifth Circuit in this ruling. That decision, once issued, would itself be subject to appeal to the Fifth Circuit and potentially a different panel of the Court. This decision, meanwhile, can be appealed directly to the Supreme Court, and the timing of that appeal is likely to determine whether the Justices weigh in on the Preliminary Injunction before the end of this current term. Josh Blackman discusses those timing issues in a post that went up last night shortly after the ruling was handed down. To summarize the state of affairs briefly, though, it is possible that the Federal Government could seek rapid appeal of this ruling to the Supreme Court, and they could rule on whether to accept the appeal in enough time to get the matter scheduled for oral argument sometime late in the term, which would mean a ruling being handed down by the end of the current term in June. There’s no guarantee that either the Federal Government or the Justices will act quickly enough for this to happen, though, and it’s always possible that the Justices could choose to let the Preliminary Injunction stand and permit the District Court and Fifth Circuit to deal with the merits of the underlying case before getting involved themselves. What this means, at the very least, the plan the President announced a year ago will remain on hold until at least June of next year and perhaps much longer than that.

This ruling is likely to have at least some impact on the race for President going forward. To a person, the Republican candidates for President have condemned the President’s actions, but their comments have dealt not so much on the merits of what he did but they way he did it. Given the fact that polling has shown that the American public supports the idea of the deportation relief the President’s actions purport to provide, but opposed the fact that he did it unilaterally, this is in all fairness not an unwise position for those candidates to take, especially in a Republican primary battle. On the Democratic side, both Hillary Clinton and Bernie Sanders have said that they would go further than President Obama did last year in implementing executive action on immigration. Given these Court rulings, though, and President Obama’s own comments that prior to last year that his 2012 actions that provided some relief to children who had been brought to the country illegally by their parents was as far as he had the authority to go under the law and the Constitution, it’s hard to view those promises as anything other than empty rhetoric on their part. More broadly, this court ruling and the underlying case itself, which could potentially be supplemented by a lawsuit by the House of Representatives in the near future, guarantees that immigration will remain at the forefront of the political debate throughout the 2016 campaign.

Update: Josh Blackman has several posts examining the issues the ruling raises including the standing of the individual states,  whether DAPA is reviewable at all, a look at whether DAPA is subject to the APA’s review and comment rules, and the substance of the Plaintiff state’s APA claims.

Update #2: As expected, the Obama Administration has announced that it will appeal the ruling to the Supreme Court. This was to be expected as the only other appeal option would have been to seek en banc review by the entire Fifth Circuit and, as I noted above, the numbers do not factor the Administration in that respect.

Here’s the opinion:

Texas Et Al v. U.S. Et Al by Doug Mataconis