Riding a wave of momentum after a string of lower court decisions halting President Obama’s controversial immigration policy, attorneys for Texas will try to keep their streak going before the 5th U.S. Circuit Court of Appeals in New Orleans on Friday.
A three-judge panel will hear arguments on whether it should overrule a district judge and let the president's executive action — which would allow an estimated 1.6 million undocumented immigrants in Texas, and 5 million nationwide, apply for renewable work permits and reprieves from deportation — move forward.
The president's supporters say Friday's hearing marks the first real legal test for a lawsuit brought by Texas and 25 other plaintiffs. Brownsville-based U.S. District Court Judge Andrew Hanen, they contend, has predictably sided with Texas Republicans in his rulings. Gov. Greg Abbott filed the suit in November in his former role as attorney general, and now-Attorney General Ken Paxton is pressing the case.
Obama's plan — officially called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA — was announced in November and scheduled to go into effect in February. But Abbott argued in November that the executive order was unconstitutional because immigration legislation must be passed by Congress.
The administration has argued that the policy doesn’t create new laws, but sets enforcement priorities and allows immigration enforcement officers to use limited resources on high-priority criminal aliens. They say what Obama tried to do is consistent with what past presidents have done.
Hanen ruled in February that the order violated the Administrative Procedure Act, which governs how federal regulations are drafted and how much input the public has. The Obama administration asked Hanen to stay his own order and let the plan proceed while the lawsuit plays out on appeal.
Last week, Hanen officially denied that request, and accused the Obama administration of intentionally misleading him by lying about whether it had already started issuing deferred action requests.
Paxton indicated this week he is confident in the case as it moves forward.
“This lawsuit transcends national immigration policy – this is about a President who has recklessly acted outside of the boundaries of the U.S. Constitution, circumventing Congress to rewrite the law as he sees fit,” Paxton said in a statement. “The Obama Administration’s unilateral action bestows a host of benefits, from entitlement programs to tax credits, to individuals who are actively breaking the law.”
But supporters of Obama's action argued that Hanen's rulings don't speak to whether the president overstepped his authority, or whether Texas has standing to sue. They are confident the three-judge panel at the 5th Circuit will address those issues.
They are also encouraged by a recent 5th Circuit ruling that the state of Mississippi and agents with Immigration and Customs Enforcement did not have standing to bring suit against the administration after 2012’s initial announcement of a program deferring immigration action against children.
The Center for American Progress, a liberal think tank, said the decision bodes well for the future of DAPA.
“The ruling has important implications for the lawsuit filed in December by Texas and other states seeking to block the more recent deferred action memoranda issued by the DHS,” said Marshall Fitz, the center's vice president of immigration policy.
Here's a timeline of events leading up to Friday’s court hearing:
Spring/Summer 2014: Tens of thousands of undocumented immigrants, most from Central America, arrive en masse in the Rio Grande Valley. By June, the number has grown enough that the Obama administration creates a FEMA-led task force to help manage the situation.
June 2014: Then-Gov. Rick Perry announces he's sending the Texas Department of Public Safety and Texas National Guard to help secure the border because the flood of undocumented immigrants is eroding the U.S. Border Patrol's ability to protect the front lines from criminals and terrorists.
September 2014: The federal government’s fiscal year ends. The Department of Homeland Security's year-end statistics will show about 68,541 unaccompanied minors were either apprehended by or turned themselves into border law enforcement on the southern border. That includes about 50,000 in the Rio Grande Valley sector, compared with 21,550 in 2013.
November 2014: President Obama announces his DAPA policy. The undocumented parents of children in the country legally are eligible for a reprieve from deportation proceedings if they pass background checks, pay taxes and have been in the country for more than five years. That single measure could affect as many as 533,000 undocumented immigrants in Texas, about 40 percent of the state’s unauthorized population. Another 92,000 reside with children who are not citizens but could be in the country legally.
December 2014: Abbott files suit challenging Obama’s order accusing Obama of violating a provision of the U.S Constitution giving Congress jurisdiction over immigration issues. Abbott also claims the action violates what is called the “take care” clause, which “requires the president to take care to execute the laws and clearly prevents this type of action the president is trying to undertake.” He argues that Texas has standing because it was directly affected by the surge of immigrants that arrived in the Rio Grande Valley over the summer and claims Obama’s policy will act as a magnet luring more youths across the border.
January 2015: U.S. District Judge Andrew Hanen hears oral arguments in the case. Supporters of DAPA and DACA worry that Hanen, appointed by president George W. Bush, will rule against the White House, pointing to a 2013 opinion he authored stating the Department of Homeland Security should enforce immigration laws and “not break them” by reuniting undocumented children with their parents instead of having the families deported or arrested, Bloomberg reported.
February 2015: Hanen rules against the Obama administration and halts the policy. Attorney General Ken Paxton applauds the ruling as "a victory for the rule of law in America and a crucial first step in reining in President Obama's lawlessness."
February 2015: The White House asks Hanen to halt his order that blocks the provision as the case plays out through the higher courts.
March 2015: Paxton accuses Obama of intentionally misleading Hanen after lawyers with the U. S. Justice Department file an advisory stating that it issued 100,000 three-year deferred action requests before the expanded version of DACA was set to begin.
April 2015: Hanen declines to let the policy continue while the 5th Circuit considers it. He lashes out at the administration for what he says were misleading remarks about the 100,000 deferred-action requests. Paxton reiterates that Obama’s policy “would inevitably cause irreparable harm to our state, imposing hundreds of millions of dollars in costs on Texas.”