This post also appears on scotusblog.com
In a decision that seems likely to be challenged in the Supreme Court, a divided federal appeals court refused on Tuesday to permit the Obama administration to put into effect its new policy to temporarily spare more than four million undocumented immigrants from being deported. The government, the U.S. Court of Appeals for the Fifth Circuit ruled, has not made a case for going forward while the legality of the program is under review in the courts.
The two-to-one decision, leaving in place a federal judge’s nationwide order that forbids for the time being the enforcement of the policy announced last November, did not settle the legality of the program. That is a question that will come up later, with a hearing on it scheduled in the Fifth Circuit for the first week in July. Even so, the administration is free in the meantime to ask the Supreme Court to step in on the near-term status of the deferred deportation policy.
The government has vigorously defended the program, and moved swiftly first to head off a delay order by the Texas judge before it was issued, and then to try to get the Fifth Circuit Court to set aside the judge’s order while the government’s appeal proceeds.
Under the policy, some 4.3 million individuals who entered the country illegally and remained without permission would be given a status of “lawful presence” in this country — well short of citizenship, and with no guarantee that they could stay even for the three-year delay period specified — and would qualify for both some federal benefits, like work permits, and some state benefits, like drivers’ licenses.
Twenty-six states have sued to overturn the policy, raising a variety of issues, including a claim that the government acted unconstitutionally because it lacked Congress’s approval, a claim that the program was illegal under federal law, and a claim that it was announced without the proper procedures. At this stage in the court fight, only the last of those claims is at issue, because that was the sole basis for the Texas judge’s order against enforcement.
The Fifth Circuit panel majority also confined its ruling to that claim, concluding that the government had not shown that it would win on that point and thus gain permission to put the policy into effect right now. The plea for permission to begin enforcement, the opinion said, “is far from justified.”
The majority rejected the government’s arguments that the states did not have a legal basis for suing (that is, they lacked “standing”), that the procedure it used to create the program was exempt from court review, that it need not have sought public input before adopting the program, and that the judge should not have blocked enforcement all across the country.
Refusing to lift any part of the delay order, the decision said that a partial bar to enforcement would result in a “patchwork” of policy among the states, and would contradict Congress’s general insistence that immigration laws be enforced uniformly and vigorously, all across the country. Moreover, it said, undocumented aliens would be able to get around a partial delay of the policy, by moving from one state to another. The government had asked the Fifth Circuit to limit the delay order to Texas or, at most, to the twenty-six states that had sued.
While the new decision went strongly against the government, there was one part of it that gave the government a small measure of relief. The Fifth Circuit did not base its conclusion that the states were free to sue on one argument that the trial judge had used as an alternative — that is, that the states were free to complain in court if the government had “abdicated” a duty to enforce the laws that could only be enforced at the national level.
The panel majority did not reject that “standing” argument, but it found that it did not have to reach it because it concluded that at least one state — Texas — had a right to sue because it could be faced with significant costs in administering a driver’s license program for those who would newly become eligible for such permits. As long as one state is free to sue, that would be sufficient for the group, the panel noted.
The ruling was written by Circuit Judge Jerry E. Smith, and was joined by Circuit Judge Jennifer Walker Elrod. Circuit Judge Stephen A. Higginson dissented, arguing that all that the government had done in adopting the new policy was to issue an “internal executive enforcement guideline.” The dissenting judge said that the Supreme Court had made clear in a 1985 ruling, and in other decisions, that a federal agency’s decision not to prosecute or enforce a policy or program was “a decision generally committed to an agency’s absolute discretion.”
Although the panel majority did not make any ruling on how the case should ultimately come out on the legality of the deferred deportation policy, its opinion made several critical remarks. If all that the program involved was a decision on which specific undocumented aliens might be allowed to stay in the U.S., that would be a different case, it said. But the policy actually would create a brand new form of “legal presence” in the country, on a nationwide, and class-wide basis, and not just the exercise of case-by-case discretion, according to the opinion. “Although prosecutorial discretion is broad,” it commented, “it is not unfettered.”
By most estimates, there are about 11.3 million undocumented aliens in the U.S., and about 4.3 million would be eligible for the “lawful presence” option.
There are another 1.2 million younger immigrants who came to the country illegally as children with their parents who are eligible for a different delayed deportation program that the Obama administration created in 2012. So far, by the end of 2014, an estimated 636,000 have been accepted in that program.
The legality of that program was not challenged by the twenty-six states in their case against the broader program, and the Fifth Circuit said nothing about that on Tuesday.