In a 2-1 decision, the 5th U.S. Circuit Court of Appeals in New Orleans upheld a Texas-based judge’s injunction blocking the Obama administration’s immigration initiative.
The ruling issued Monday further dims prospects of implementation of the executive action. It may may mean the administration will not be able to bring its appeal to the Supreme Court before Obama leaves office in 2017.
Appeals over the injunction could take months and, depending on how the case unfolds, it could go back to the Texas federal court for more proceedings.
Republicans had criticized the plan as an illegal executive overreach when Obama announced it last November. Twenty-six states challenged the plan in court.
The administration argued that the executive branch was within its rights in deciding to defer deportation of selected groups of immigrants, including children who were brought to the U.S. illegally.
On Monday evening, the White House said in a statement that it strongly disagreed with the court and that the departments of Justice and Homeland Security will review the ruling to determine the “next steps” in the case.
“The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws,” the statement read. “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.”
Texas Gov. Greg Abbott who, backed by 25 other states, filed a lawsuit citing the economic burden Obama’s action would impose on their state governments, praised the ruling issued late Monday.
“President Obama should abandon his lawless executive amnesty program and start enforcing the law today,” Abbott said in a news release.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said in a statement that “President Obama’s decision to ignore the limits placed on his power and act unilaterally to rewrite our nation’s immigration laws is an affront to the Constitution.”
The administration could ask for a re-hearing by the full 5th Circuit but the National Immigration Law Center, an advocacy group, urged an immediate Supreme Court appeal.
“The most directly impacted are the 5 million U.S. citizen children whose parents would be eligible for temporary relief from deportation,” Marielena Hincapie, executive director of the organization, said in a news release. She called on the Department of Justice “to seek Supreme Court review immediately, where we are more likely to obtain justice for our communities.”
Nora Adriana Preciado, a litigator with the National Immigration Law Center, told the Los Angeles Times that if the Supreme Court takes the case, advocates plan to press them to expedite it.
“It’s a case of national importance: We’re talking about 26 states suing the federal government and almost 5 million people affected,” she told the Times. “We’re hopeful the Supreme Court will come down on the right side of this case.”
Justice Department spokesman Patrick Rodenbush said in a statement they were reviewing the opinion to determine how best to proceed.
“The department is committed to taking steps that will resolve the immigration litigation as quickly as possible in order to allow DHS (Department of Homeland Security) to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children,” he said.
Part of the initiative included expansion of a program called Deferred Action for Childhood Arrivals, protecting young immigrants from deportation if they were brought to the U.S. illegally as children.
The other major part, Deferred Action for Parents of Americans (DAPA), would extend deportation protections to parents of U.S. citizens and permanent residents who have been in the country for years.
The 70-page majority opinion by Judge Jerry Smith, joined by Jennifer Walker Elrod, rejected administration arguments that the district judge abused his discretion with a nationwide order and that the states lacked standing to challenge Obama’s executive orders.
They acknowledged an argument that an adverse ruling would discourage potential beneficiaries of the plan from cooperating with law enforcement authorities or paying taxes. “But those are burdens that Congress knowingly created, and it is not our place to second-guess those decisions,” Smith wrote.
In a 53-page dissent, Judge Carolyn Dineen King said the administration was within the law, casting the decision to defer action on some deportations as “quintessential exercises of prosecutorial discretion,” and noting that the Department of Homeland Security has limited resources.
“Although there are approximately 11.3 million removable aliens in this country today, for the last several years Congress has provided the Department of Homeland Security with only enough resources to remove approximately 400,000 of those aliens per year,” King wrote.
Obama issued the executive action granting an estimated 5 million undocumented parents of U.S. citizen children temporary relief from deportation in last November.
The initial euphoria in the wake of DAPA was quickly extinguished. After a Texas-based federal judge blocked the action in February, the Obama administration attempted to persuade an appeals court to lift the injunction.
Legal scholars say the Obama administration should have issued a longer-lasting formal regulation also known as a substantive rule, which would have protected immigrants from deportation, as opposed to a policy, which makes protection from deportation more of a privilege — a privilege that experts say can more easily be abolished.
Furthermore, analysts say, the administration should have more finely characterized who will benefit from deportation relief, and how broadly that relief is defined.
According to immigration lawyers, this amounts to a strategic error that may come to define Obama’s immigration legacy — one already marred by the fact that the government has deported more than 2 million people during the Obama administration.