President Barack Obama is not letting his immigration executive actions be shut down without a fight and he plans to take it all the way to the Supreme Court. The Obama Administration represented by the Justice Department filed an appeal to the Supreme Court on Friday, Nov. 20, 2015 requesting an “expedited review” so that the highest court could overturn the injunction affirmed by the U.S. Fifth Circuit Court of Appeals on Tuesday, Nov. 10. Obama is hoping that the Supreme Court will take his side as they did when they ruled on his Obamacare, the healthcare law, the Affordable Care Act. Immigration reform and at least these executive actions were important to President Obama’s second term goals and legacy and the injunction has been a blow to his plans.
The Justice Department filed a 35-page brief as part of their appeal. Lawyers argued a decision “warrants immediate review” that the court could overturn the injunction and allow the program to proceed. Solicitor General Donald B. Verrilli Jr. wrote the brief for the Justice Department and justified the review because “A divided court of appeals has upheld an unprecedented nationwide injunction against implementing a federal immigration enforcement policy of great national importance, and has done so in violation of established limits on the judicial power,”
Continuing, Verrilli listed the consequences of the injunction, “If left undisturbed, that ruling will allow states to frustrate the federal government’s enforcement of the nation’s immigration laws. It will force millions of people … who are parents of U.S. citizens and permanent residents to continue to work off the books, without the option of lawful employment to provide for their families.”
Verrilli argued that the Fifth Circuit Court of Appeals had committed legal errors in their ruling that justified the Supreme Court hearing the case. The administration’s lawyer said the federal court “fundamentally erred” and “committed manifold and significant errors in affirming the unprecedented nationwide injunction,” Verrilli also expressed that the administration was asking for an “immediate review.”
President Obama wants his executive actions to go into effect before he leaves office and wants the case resolved this docket year for the Supreme Court before the 2016 general election. If the Supreme Court rules in Obama’s favor his programs could begin during the summer. To hear the case this term, the states would have to submit their briefs by mid-winter.
Of all the executive actions President Obama pushed through, he has not be able to do so with his immigration related actions that Republicans have highly objected. The U.S. Fifth Circuit Court of Appeals ruled last week on Nov. 10 that they are upholding the injunction a Texas federal judge implemented earlier this year. In a 2-1 ruling the court stated that President Obama “lacked the authority” to shield “one-third” of illegal immigrants through an executive action. The court said Obama’s program would “grant lawful presence and work authorization to any illegal alien in the United States.” The court had agreed to hear the “appeal on an expedited basis” in March while oral arguments were conducted on July 10.
After the ruling, the White House issued a statement indicating the next step would be asking the Supreme Court to hear the case. The White House wrote, “The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws. 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.”
A Federal Appeals court ruled against President Barack Obama and the Justice Department representing him on Tuesday, May 26, 2015. In a 2-1 ruling the U.S. Fifth Circuit Court of Appeals denied the Obama administration’s request to lift an injunction blocking the president’s executive actions regarding immigration. The three-judge panel in New Orleans consisted of Judge Jerry Smith appoint by Republican Ronald Reagan, Smith also wrote the opinion. Joining him was Judge Jennifer Walker Elrod, who was appointed by Republican George W. Bush. The dissention came Obama’s appointee, Judge Stephen A. Higginson.
In February, a Texas federal judge granted the requests of 26 states to block those executive actions with a temporary injunction. Late Monday evening, Feb. 16, 2015 U.S. District Judge Andrew S. Hanen in Brownsville, Texas, issued the injunction just before the first part of Obama’s orders from going into effect on Wednesday, Feb. 18. Judge Hanen reasoned that the administration did not “comply” with Administrative Procedures Act’s “requirements.” Hanen said that that the executive actions would place a heavy burden on the states’ resources.
The Justice Department argued President Obama acted in “prosecutorial discretion” and that the administration was issuing “general statement of policy,” not rules, which is exempt from the “notice and comment” “requirement,” and therefore Judge Hanen had no legal basis to block the actions. The Justice Department argued immigration is a federal issue not a concern of the states, and they had “no standing” to request the injunction. The Republican Governor of Texas Greg Abbott filed the lawsuit on behalf of the 26 states in November when he was still Texas’ Attorney General. Arguments were held in January in Brownsville Texas.
The executive actions would have prevented nearly 5 million illegal immigrants from deportation. The first part would have expanded on the Deferred Action for Childhood Arrivals program” (DACA), relating to immigrants who were brought into the country illegally as children; only 270,000 will be affected.
The injunction has to do with the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which protects the parents of U.S. citizens from deportations and allows them to defer deportation and legally work in the country; this part was suppose to commence in May, and represents the bulk, 4.7 million illegal immigrants.
After Congress failed to pass a Senate bipartisan comprehensive immigration reform bill from 2013, President Obama decided to take matters in his own hands in November 2014, just as the newly elected Republican Congress warned him they would block its implementation, because those orders went beyond the president’s Constitutional right. Still President Obama went ahead and expanded and created new programs, even taking applications months before the program was set to be implemented, without the knowledge of Congress.