NEW ORLEANS — An argument from U. S. Department of Justice lawyers that the state of Texas doesn’t have standing to challenge the Obama administration's controversial immigration policy met with resistance from a pair of federal appellate judges Friday.
A three-judge panel of the 5th Circuit Court of Appeals in New Orleans heard more than two hours of arguments as federal attorneys fought to win reversal of a Brownsville-based judge’s earlier order blocking the policy.
In February, U.S. District Judge Andrew Hanen stopped the program, announced in November, which would allow an estimated 1.6 million undocumented immigrants in Texas, and 5 million nationwide, to apply for renewable work permits and reprieves from deportation.
Texas led the charge when then-Attorney General Greg Abbott filed suit in December, arguing that Obama overstepped his authority. The White House has countered that the federal government — not individual states — has the power to enforce immigration laws.
“This suit is unprecedented because in no case have the states been found to have standing because they have no judicially cognizable interest in who is prosecuted under the immigration laws,” argued Deputy Assistant Attorney General Benjamin Mizer. “Instead, Congress has given that prosecutorial responsibility to the Department of Homeland Security.”
Judge Jerry E. Smith, who was appointed by President Ronald Reagan, immediately interrupted Mizer, saying the difference in this case was that Texas claims that Obama’s order also grants special benefits, mainly work authorization, to the potential applicants. The Lone Star State will also suffer damage, said Texas Solicitor General Scott Keller, because it will have to educate and provide health care to the immigrants. It will also incur costs for having to issue some driver’s licenses.
Smith later asked Mizer to differentiate between the immigration lawsuit and a 2007 U.S. Supreme Court ruling in an environmental case in which several states successfully sued the federal government. That case was also mentioned in Hanen’s ruling halting Obama’s order.
“Explain why in your view that case on the standing issue has no applicability here,” Smith said.
Mizer said that case dealt with geographic borders and not benefits to individuals.
Judge Jennifer Elrod also questioned when, if ever, states would have standing to sue on immigration issues and presented Mizer with a list of hypothetical scenarios, including one that gave immigrants immediate voting rights.
Mizer said provisions of the Voting Rights Act would come into play separately, but Elrod was mildly cynical.
“We finally found one that the state’s could challenge? If it gave voting rights?” she said.
One judge, however, Obama appointee Stephen Higginson, cautioned that a ruling in favor of Texas and the 25 other states that joined the suit could open a floodgate of challenges to several government agencies.
“This is a dangerous rule for us to write,” Higginson said.
He was also skeptical of Texas’ claim that Obama was issuing “amnesty” through his order and that deferred action recipients were automatically allowed to legally work in the country.
“Does it say ‘grant’ or does it say ‘eligible to apply’” for work, he asked. “That’s a big difference.”
He also said that his interpretation of deferred action wasn’t legal status, which leads to permanent residency and possibly eventual citizenship, but legal presence.
“Presence is ‘you’re not removable but you could be’” he said, referring to a provision of deferred action that allows the government to reopen a case and initiate deportation proceedings if it sees fit.
After the hearing, attorneys for the state of Texas expressed confidence and lauded the judges for how they presided over the hearing, which included allowing both sides more time to make their claims than was initially allotted.
“This is how it’s supposed to work,” Keller said, adding that Higginson’s own comment reinforced why the state filed suit in the first place.
“He said, if this program goes into effect, if people come out of the shadows, but at the end of the day, the president didn’t have the authority, isn’t this going to harm those people that are coming out of the shadows?” Keller said. “So Judge Higginson is picking up on the fact that what we’re talking about in this process is just allowing the courts to decide if this unilateral executive action is for Congress” to decide, he said after the hearing.
Several times during the hearing, court-audience members struggled to hear as the chanting and singing from protesters and immigrant rights supporters infiltrated the courtroom. Attorneys even said they expected nothing less than a vibrant atmosphere on a Friday in New Orleans, a city well known for its good-time reputation.
It’s unclear when the panel will rule.