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Abbott, Paxton Praise Panel's Ruling on Immigration Order

A three-judge panel of the 5th Circuit Court of Appeals in New Orleans has denied the White House’s request to let a controversial immigration policy proceed.

Immigration reform protesters walked up Congress Avenue toward the Texas Capitol on Feb. 22, 2013.

Editor's note: This story has been updated with comment from Texas Democratic Party Chairman Gilberto Hinojosa.

Three months after a Brownsville-based federal judge halted President Obama’s executive action on immigration, a three-judge panel of the U.S. 5th Circuit Court of Appeals denied the White House’s request to let the controversial immigration policy proceed.

The policy, called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, was announced in November. It would have allowed for the roughly 5 million undocumented immigrants nationwide — including an estimated 1.6 million undocumented immigrants in Texas — apply for three-year renewable work permits and reprieves from deportation proceedings.

The decision marked a victory for Gov. Greg Abbott, who filed suit to stop the program in December when he was attorney general. Twenty-five states have since joined the lawsuit.

“President Obama abdicated his responsibility to preserve and protect the United States Constitution when he issued this executive action, and after months of obfuscation and stall tactics by his Administration, victory for the Constitution has been awarded and the Rule of Law restored,” Abbott said Tuesday in a statement.

Attorney General Ken Paxton, whose office is now handling the case, added: “The separation of powers and checks and balances remain the law of the land, and this decision is a victory for those committed to preserving the rule of law in America. Telling illegal aliens that they are now lawfully present in this country, and awarding them valuable government benefits, is a drastic change in immigration policy."

The panel rejected the White House’s request in a 2-1 decision. Judge Jerry E. Smith, who was appointed by former President Ronald Reagan, and Judge Jennifer Elrod, who was appointed by former President George W. Bush, voted to deny the request. Obama appointee Judge Stephen Higginson was cast the dissenting vote.

The Obama administration can appeal to the entire 5th Circuit, or ask the U.S. Supreme Court to consider the appeal.

Abbott had initially accused the Obama administration of violating provisions of the U.S. Constitution that mandate that immigration laws can only be passed by Congress. He also said 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.” 

In February, Brownsville-based U.S. District Court Andrew Hanen ruled in Abbott’s favor. He said in his ruling that the Obama administration did not "comply with the Administrative Procedure Act." The Administrative Procedure Act governs the way regulations are made and how much input the public has. 

The Obama administration countered after that ruling and told the appellate judges that Texas did not have standing to sue because it could not show it would be irreparably harmed. Attorneys for Texas argued that it would be forced to issue driver’s licenses to the immigrants, which would incur a cost to the state.

In a 68-page opinion issued Tuesday, the 5th Circuit panel agreed. It also rejected the White House’s request that the program only be halted in Texas, or at least the 26 states that have filed suit.

“But partial implementation of DAPA would undermine the constitutional imperative of ‘a uniform Rule of Naturalization’ … and Congress’s instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly,’” the judges wrote.

Responding to governor and attorney general's praise of the ruling, Texas Democratic Party Chairman Gilberto Hinojosa said Abbott and Paxton "continue to waste taxpayers’ dollars with a frivolous lawsuit that goes after law-abiding families, not criminals."

"People come to Texas because they believe in the promise of this state," Hinojosa added. "We remain hopeful that the courts will eventually allow President Obama’s immigration actions to go into effect.”

Austin-based immigration attorney Jackie Watson said she was “disappointed” but not surprised at the decision. When Hanen initially blocked the program in February, she said she’d tell her clients to “stay the course” and think positively.

“I know it doesn’t sound like good advice anymore, but this is the way the court system runs. This is exactly how I thought it would have played out,” she said of Tuesday’s decision, citing the makeup of the panel.

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