Appeals court won’t lift injunction against Obama’s immigration programs

Feb. 16 — A federal judge in Texas puts the order on hold.

April 17 — The 5th U.S. Circuit Court of Appeals in New Orleans holds a hearing in the case.

Tuesday — A three-judge panel of the appeals court allows the temporary injunction to continue, saying the federal government “has not made a strong showing that it is likely to succeed on the merits.”

A federal appeals court in New Orleans on Tuesday dealt a blow to the Obama administration’s efforts to suspend the threat of deportation for millions of immigrants living illegally in the U.S.

In a split decision, the 5th U.S. Circuit Court of Appeals rejected the government’s request to lift a temporary injunction against those programs while the court hears an appeal in the case. It’s unknown how long that case could remain pending, though one expert said it could take years.

Georgia and 25 other states are suing to block President Barack Obama’s executive actions on immigration, arguing they are unconstitutional. Supporters of the president’s order say the government is striving for a more humanitarian approach to immigration enforcement amid limited resources.

In addition to temporary deportation deferrals, those who qualify for relief would also be eligible for three-year work permits. An estimated 170,000 immigrants living in Georgia meet the parameters set by the government for relief, according to the Migration Policy Institute, a Washington-based think tank that evaluates migration policies.

In its 68-page ruling issued Tuesday, the appeals court shot down arguments that a lower court’s decision to temporarily block the Obama administration’s actions “offends separation of powers and federalism.” The court also rejected arguments that the injunction prevents the government from using its discretion while enforcing the nation’s immigration laws.

“In summary, the United States has not made a strong showing that it is likely to succeed on the merits,” Judge Jerry Smith, who was appointed by Republican President Ronald Reagan, wrote for himself and another Republican appointee, Judge Jennifer Elrod.

In a dissenting decision, Judge Stephen Higginson — an Obama appointee — said he would grant the government’s request to lift the injunction because its actions on immigration are “nonjusticiable,” or not capable of being settled by the action of a court.

“I would hold that the underlying issue presented to us — the order in which non-citizens without documentation must be removed from the United States — must be decided, presently is being decided, and always has been decided, by the federal political branches,” Higginson wrote.

President ‘does not have the power to bypass Congress’

Led by Texas, Georgia and the other states are arguing in court that the Obama administration’s actions will increase their costs for services and encourage more illegal immigration. Texas has proved it has standing in the case because it will face an increase in costs for issuing driver’s licenses to people living without legal status in the U.S., the appeals court ruled. Critics of Obama’s order also say he is trying to make an illegal end run around Congress.

“We are a nation built on laws, and the president simply does not have the power to bypass Congress and single-handedly change the law to achieve his policy goals,” Georgia Attorney General Sam Olens said in a prepared statement Tuesday. “There is no question that immigration reform is needed, but it must be accomplished in accordance with the Constitution.”

The Obama administration said Tuesday that its actions were “consistent with laws passed by Congress and decisions of the Supreme Court, as well as five decades of precedent by presidents of both parties who have used their authority to set priorities in enforcing our immigration laws.”

“We are disappointed in the Fifth Circuit’s ruling, but our appeal of the district court’s preliminary injunction proceeds on an expedited basis in the court of appeals,” Patrick Rodenbush, a spokesman for the Justice Department, said in an email.

Final ruling ‘could be a few years down the road’

Stephen Yale-Loehr, a New York-based immigration attorney who teaches immigration law at Cornell Law School, pointed out that the court’s decision on Tuesday “only involved an appeal of the district court’s preliminary injunction, not the merits.”

“The true test will be on the merits of the case,” he said. “That could be a few years down the road, after a trial.”

The states won the first legal battle in February when a federal court in Texas halted the centerpiece of Obama’s plan. That provision would suspend the threat of deportation for immigrants who don’t have legal status but do have children who are U.S. citizens or legal permanent residents. U.S. District Judge Andrew Hanen also temporarily suspended the expansion of a similar relief program — called Deferred Action for Childhood Arrivals, or DACA — for immigrants who were illegally brought to the U.S. as children.

Hanen did not rule on the constitutionality of Obama’s plans. Instead, he cited technical grounds for issuing his injunction, saying the federal government had failed to comply with the Administrative Procedure Act, which requires notices about proposed rule changes and opportunities for public comment. The Justice Department is now appealing Hanen’s injunction.

Other states, municipalities have backed Obama

Fifteen other states and Washington, D.C., have filed court papers in support of the Obama administration’s efforts. So have a large group of mayors, county officials and others representing 73 municipalities across the country, including Atlanta Mayor Kasim Reed.

Reaction to the court ruling fell along partisan lines in Congress on Tuesday.

“The appeals court confirmed what at least 26 states — including Georgia — and most Americans already know: The president overstepped his authority when he decided to unilaterally remake immigration law, ignoring Congress,” U.S. Rep. Doug Collins, a Gainesville Republican, said via a spokesman.

In her own statement, House Minority Leader Nancy Pelosi, D-Calif., predicted the administration will ultimately win the case.

“Today, two Fifth Circuit judges decided to continue to block the President’s Immigration Accountability Executive Actions and defer the dreams of hardworking immigrant families across America,” Pelosi said. “Their decision represents a disappointing delay of a clear outcome.”

Courts seen as best option for Obama foes

Republicans in Congress had sought to block Obama’s actions earlier this year by holding up funding for the Department of Homeland Security. That effort failed, as the agency’s funding was extended without immigration-related conditions, even though all of Georgia’s Republicans voted against it. By then, though, the actions were already on hold in the court case — which remains the best chance for Obama’s foes to defeat the policy change.

“Any attempt to circumvent Congress and grant amnesty to millions in this country illegally is unacceptable and unconstitutional,” Georgia Republican U.S. Sen. Johnny Isakson said through a spokeswoman. “As I have said before, we have three branches of government for a reason, and as long as Obama continues to circumvent Congress, we will use the judicial branch to check his actions.”