NEW ORLEANS — A federal appeals court appeared divided Friday over the Obama administration’s request to lift a lower-court ruling blocking the government from implementing the president’s executive actions to shield undocumented immigrants from deportation and to grant them work permits.
During a rare oral argument session that lasted 2
Benjamin Mizer, representing Justice, argued that a federal judge in Texas erred in February when he halted Obama’s deferred-action program as the judge deliberates over a lawsuit filed by Texas and 25 other states. The Obama administration has appealed Judge Andrew Hanen’s injunction and is asking the appeals court to stay the order, in hopes that federal agencies can begin enrolling immigrants in a deferred-action program.
“The district court decision was wrong as a matter of law,” Mizer told the panel of judges.
Texas Solicitor General Scott Keller, whose state is leading the lawsuit, argued that the president abused his authority when he announced plans in November to dramatically expand the deferred-action program that started in 2012 for immigrants brought to the United States illegally as children.
“If this passes muster, future presidents will be able to write all sorts of laws,” Keller said.
Judge Jerry Smith adjourned the hearing about 12:30 p.m. but did not say when the court would issue its ruling on the stay request.
Smith, a Ronald Reagan appointee, rarely spoke during the proceedings; Judge Jennifer Elrod, appointed by George W. Bush, focused most of her questions, many skeptical, at Mizer; Judge Stephen Higginson, named by Obama in 2011, aggressively questioned both sides and was the most skeptical questioner of Keller.
Legal analysts cautioned that it is usually difficult to assess how judges will rule based solely on their questions and tone.
The courtroom was filled to capacity with an audience of 100 journalists and immigrant rights activists. About 200 activists rallied outside the courthouse, their chants, drumming and music audible inside the courtroom.
The stakes are high for Obama, whose move to reshape U.S. immigration policies through his executive authority stands as one of the most important and boldest initiatives of his second term. After Congress failed to pass a comprehensive immigration overhaul last summer, Obama declared that he would act unilaterally over the fierce objections of Republicans.
The fate of Obama’s immigration actions could set the stage for a debate over the issue in the 2016 presidential race. Latinos and Asian Americans, both fast-growing subsets of the electorate, overwhelmingly supported Obama in 2008 and 2012, worrying some GOP leaders who hoped the issue would be put to rest by next year.
No matter what the 5th Circuit decides, the legal fight is far from over. Hanen is still deliberating over the constitutionality of Obama’s executive actions, and his decision is likely to be appealed — perhaps ultimately to the Supreme Court.
“It’s important to remember this is not just about a lawsuit,” said Marielena Hincapié, the executive director of the National Immigration Law Center, who was in the courtroom. “It’s about individual members of the community that have deep ties and their ability to achieve stability, dignity and respect. We want to lift up that human face and not let it get lost in the legal proceedings.”
Obama’s executive actions aim to allow up to 5 million undocumented immigrants who have otherwise not broken the law to apply for three-year renewable waivers from deportation, with many of them to be eligible for work permits. To qualify, they must be parents of U.S. citizens or legal permanent residents or must have arrived in the United States as children.
In their lawsuit, the states argued that the federal government abdicated its law enforcement responsibilities and failed to file proper public notice for a federal rule change. The states also argued that they would incur economic costs, mostly in the form of driver’s licenses to those who qualified for deferred action.
The Obama administration countered that it has deported more than 2 million immigrants but that the federal government does not have enough resources to deport all of the more than 11 million in the country. And it said the economic benefits from the immigrants working and paying taxes would more than offset any potential costs.
During the oral arguments, Mizer was asked to explain why Obama’s deferred-action program did not simply amount to blanket amnesty to a large class of immigrants who are living in the country illegally. The administration has defended the program as a form of “prosecutorial discretion,” in which law enforcement agencies with limited resources must set priorities for enforcement.
The lower court’s finding “is that discretion is disingenuous,” Elrod said.
“That’s a clear error,” Mizer responded. “Discretion is being exercised on a case-by-case basis” when the government decides who is eligible for deportation deferrals.
Keller called Obama’s actions one of the “biggest changes” in immigration law in the nation’s history and asserted that it had “nothing to do” with deportation enforcement. Rather, the Texas solicitor general said, the president’s aim was to grant lawful status — and, thus, associated economic benefits — to the immigrants, at the expense of the states where they live.
“The U.S. Code triggers benefits to someone who has lawful status,” Keller said.
But Higginson countered by suggesting that the administration could simply end the deferred-action program at any point and deport people who were eligible for it — meaning they only have temporary status in the country.
“It’s scary for them to” come forward and enroll, the judge said of the undocumented immigrants. Furthermore, Higginson said, Obama’s program could be resolved through the legislative system: “Congress can end this with a flick of the pen — and there would be no more deferred action — without coming to the courts.”