Posted on 05/27/2015 2:44:50 PM PDT by Cincinatus' Wife
The Department of Justice on Wednesday said it will not make an emergency request to the Supreme Court to lift an order blocking President Obama's executive action on immigration.
Instead, the administration will focus on the appeal of the injunction itself at the 5th Circuit, which is expected to proceed in July.
"The Department has determined that it will not seek a stay from the Supreme Court," Justice Department spokesman Patrick Rodenbush said.
Rodenbush said the "best way" to win the case is "to focus on the ongoing appeal on the merits of the preliminary injunction itself. That appeal has been proceeding on an expedited basis, and the 5th Circuit is expected to hear argument the week of July 6.”
The decision by DOJ means that a Texas federal judge’s order to temporarily block Obama’s controversial immigration executive orders will remain in place, at least for now.
On Tuesday, a panel on the 5th Circuit Court of Appeals ruled 2-1 against lifting that hold, with the majority opinion written by two Republican-appointed judges arguing that the "public interest favors maintenance of the injunction."
Judges Jennifer Elrod and Jerry Smith said the stay should remain in effect because the states had made a compelling case that they would suffer harm if the programs went into effect. They also said granting stays of deportation to broad groups of immigrants goes beyond the president’s “prosecutorial discretion.”
“It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens,” the judges wrote. “Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.”
Obama in November announced new policies that would defer deportations for parents of children that are legal U.S. residents and allow them to apply for work permits. He also expanded a 2012 program for children who came to the U.S. illegally as children.
The same 5th Circuit is also reviewing a separate challenge on the injunction and will hear oral arguments in that case during the first full week of July. The administration will try to persuade the judges to lift the injunction during that argument. If Obama loses, DOJ could take the broader merits case up to the Supreme Court.
The injunction stems from a larger suit filed by 26 states on whether Obama’s executive actions are constitutional.
Immigration activists had urged the government to appeal to the Supreme Court as soon as possible for a final decision. But Karen Tumlin with the National Immigration Law Center said that her organization made that call without specifying which avenue the Justice Department should take to bring the case to the high court.
“We continue to call upon the Obama administration to move quickly and aggressively in defending the case because each day that passes without implementation of the important programs is a day that there are real costs to our communities and to our economy,” Tumlin told The Hill.
“Yesterday’s decision on simply an emergency stay is nowhere close to the last word on this subject.”
The fate of President Obama’s controversial deportation-relief program has been thrown into question following a legal setback that has pro-immigration groups increasingly nervous.
In a split decision earlier this week, a three-judge panel from the 5th Circuit Court of Appeals handed a victory to Obama’s opponents when it refused to lift a hold on his executive actions, which could allow millions of immigrants in the country illegally to live and work in the U.S. without fear of deportation.
The decision made it more likely the court battle will spill into 2016, the final year of Obama’s presidency.
“I think it’s a real concern that this litigation delay is going to be protracted and that this could very well push into next year,” said Marshall Fitz, vice president of immigration policy at the Center for American Progress, which has close ties to Obama.
In a sign that the administration is now resigned to a lengthy legal battle, the Justice Department announced Wednesday it would not make an emergency request to the Supreme Court to lift the hold on his order. The DOJ is instead choosing to focus on its appeal of the injunction itself, a proceeding not expected at the 5th Circuit until July.
Advocates say remain confident the Obama administration will eventually prevail in a series of legal challenges related to a lawsuit brought by 26 states against the programs.
But they worry the longer the fight drags out, the harder it might be to convince immigrants to sign up for the programs.
Marielena Hincapié, executive director of the National Immigration Law Center, said the intent of the legal challenge is to “delay, confuse and instill fear in our communities.”
She said groups would continue to encourage eligible immigrants to prepare to apply for the programs, but the court case makes that task tougher.
If uncertainty continues to surround the program, it may be difficult to convince immigrants to come out of the shadows and hand over their personal information to the government.
“We acknowledge it will be harder challenge for us to make sure that our communities are well informed,” she said.
Not all immigration watchers agree. David Leopold, the former president of the American Immigration Lawyers Association, believes potential applicants won’t be deterred by the legal wrangling because the benefits are enormous for immigrant families.
“This delay is not a welcome delay but I don’t think it’s going to discourage people from applying at all,” he said. “People who have been living in this country for 10, 15 years are not about to give up and leave.”
The 5th Circuit denied the Obama administration’s emergency request to lift a Texas judge’s order blocking the program from taking effect until it decides the injunction on the merits. In their decision, the judges wrote administration was unlikely to succeed on its appeal of the injunction.
The hold applies to a pair of new deferred deportation programs announced by Obama last November: one for parents of U.S. citizens and legal residents, and an expansion of his 2012 initiative that applies to immigrants brought to the country illegally as children, known as DREAMers.
On Wednesday, Justice Department spokesman Patrick Rodenbush said the "best way" to win the case is "to focus on the ongoing appeal on the merits of the preliminary injunction itself.”
"The Department has determined that it will not seek a stay from the Supreme Court," Rodenbush said.
Oral arguments in the case are expected to take place at the New Orleans court on July 6. Whichever side loses that decision will likely appeal to the Supreme Court.
And U.S. District Judge Andrew Hanen, who issued the injunction in February, still has not ruled on the suit itself, which argues Obama overstepped his constitutional authority.
The White House and immigrant-rights advocates argue the president acted within the law and remain confident they will succeed in court.
They say legal precedent favors the administration’s argument that the states have no standing in the case, because the federal government has the sole responsibility to enforce immigration law. The 5th Circuit sided with the president in April when it tossed out a separate lawsuit challenging Obama’s 2012 deferred action program.
The judges ruled that the plaintiffs in Crane v. Johnson, the state of Mississippi and a group of Immigration and Customs Enforcement agents lacked the authority to sue because they could not prove they were harmed by Obama’s program.
“It’s a partisan political attack masquerading as a legal complaint, and at some point, a judge is going to figure that out,” Leopold said of the lawsuit.
But with just 20 months left in Obama’s presidency, his administration faces a ticking clock to resolve the legal issues surrounding the program. Hanen’s injunction was issued 48 hours before the government was to begin accepting applications for Obama’s expanded deportation relief program for young undocumented immigrants.
“There is a deep amount of frustration and this court case will add to the confusion that exists,” said Fitz, who formerly practiced immigration law. “The litigation around this is confusing for everybody, no more so that for the community it affects. Many people who were standing there, paperwork in hand, are wondering what’s next.”
Advocates say they are not waiting for the courts to prepare immigrants to apply for the programs in case the hold is lifted.
Activist groups are holding a series of forums to educate eligible immigrants about the initiatives, including one in Salinas, Calif., on Sunday. The American Immigration Council this week hosted a meeting with consular officials to encourage their citizens to step forward and apply if the programs are allowed to proceed.
“We continue to urge people to prepare,” said Debbie Smith, associate general counsel for the Service Employees International Union. “We know it takes people a long time to get the documentation together. It’s disappointing, it’s frustrating but we do continue to urge people to prepare because we feel ultimately this will go forward.”
The judges should make the DOJ grab 0bama and incarcerate him for treason.
Obviously they’d rather ignore the Fifth Circuit than ignore the Supreme Court.
Wonder if this has been told to Sheriff Arapio of AZ yet?
In February Arpaio submitted a court brief to Judge Hanen, 5th Circuit.
“What’s the hurry, the border is wide open and either way I win” BO
It will not go forward, by Obama, to the Supreme Court because it will have to first pass muster with none other than Justice Scalia, who can determine at his leisure whether the Supreme Court ever hears it.
Is that not WONDERFUL? Sometimes, there is a little justice!
This time, his name is Scalia. .)
Translation: they are going to try and strong arm other judges to rule in their favour.
If successful, they will implement their fascism with extreme speed.
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