President Obama’s sweeping change in immigration policy, designed to allow more than four million non-citizens who entered the U.S. illegally to remain in the country, on Friday withstood a new challenge before a federal appeals court — but only for a technical reason. Two opinions issued in the new case, however, contained starkly differing reactions to the new deferred-deportation policy, suggesting that the continuing court battles will be intense, with real potential hazards for the new approach.
The U.S. Court of Appeals for the District of Columbia Circuit refused to rule on the President’s authority to set the new policy, finding that an Arizona county sheriff had no legal right to pursue his challenge because he could not show that his law enforcement efforts would be hampered by the new regime. The sheriff was Joseph M. Arpaio of Maricopa County, who has a reputation of being very aggressive toward undocumented immigrants who live in his state.
His lawsuit, like those of others who have challenged the policy, argued that President Obama and his aides have acted unconstitutionally by simply refusing to carry out the nation’s strong policy of deporting those who came to the U.S. illegally, and put the new policy into effect without following the normal procedural rules. Other lawsuits against the policy are pending in the U.S. Court of Appeals for the Fifth Circuit, a case filed by 26 states, in the U.S. Court of Appeals for the Ninth Circuit, involving a challenge by the state of Arizona, and in the District Court in Washington, D.C., where the challenger is the U.S. House of Representatives.
In the D.C. Circuit Court, a three-judge panel found unanimously that Sheriff Arpaio’s claims of harm to law enforcement in his county were too speculative to prove that the new policy will lead to more crime by non-citizens in the state, straining the resources of his deputies and the county’s jails. The judges described a lengthy chain of events, each of which would have to follow, one after the other, before there could ever be a proven link between the policy and the impact in Arizona law enforcement. The opinion expressed deep skepticism that such proof could ever be put forth.
The decision along these lines was no surprise. But what made the ruling remarkable was the deep contrast in how the three judges reacted to the new policy itself. The main opinion described the policy in terms that largely followed the Obama administration’s description of how the program works and the need for it. Between the lines, it was noticeably sympathetic to the goals of the policy, even though the ruling did not reach the merits of its legality. A separate opinion, however, was conspicuously negative in its view of the program, and implied strongly that the administration may have actually tried to write new law rather than to enforce existing law, and was intentionally refusing to follow Congress’s lead on immigration policy.
The main opinion was written by Circuit Judge Cornelia T.L. Pillard, one of the newest members of the court and one of its most liberal. That opinion was joined, without comment, by another new, liberal member, Circuit Judge Sri Srinivasan.
The third member of the panel was Circuit Judge Janice Rogers Brown, one of the most conservative members of the D.C. Circuit Court. She wrote a separate opinion, seeking to show how narrow the ruling was, but also to register a strong complaint that the basis for the ruling — the failure to show “standing” to sue under the Constitution’s Article III — had now become a significant barrier to the opportunity of citizens and organizations to challenge federal government policy. It was apparent that Judge Brown was uncomfortable having to apply precedents on the right-to-sue issue in this case, and perhaps generally.
What stood out most prominently in her separate opinion were her critical comments about the broad-based deferral of deportation of millions of non-citizens in this country illegally. The sheriff’s challenge, she wrote, reflected “the widespread perception that the administration’s prosecutorial discretion meme is constitutionally problematic.” She suggested that the government had put a “dazzling spin” on the new program, defending it as merely an exercise of discretion when, she said, it actually was “a categorical suspension of existing law” that “arguably crosses the line between implementing the law and making it.”