Appeals court scrutinizes Obama immigration action as activists rally outside

Justices in the 5th U.S. Circuit Court of Appeals in New Orleans hear arguments related to President Obama’s executive action on immigration. Immigrant advocates gather outside the courthouse in support of the action.

By Molly Hennessy-Fiske

July 10, 2015 9:59 AM PT

Reporting from New Orleans — Lawyers for Texas and a coalition of states opposing President Obama’s executive action on immigration made their case to a federal appeals court here Friday, sparring about whether the president has the authority to shield an estimated 5 million immigrants from deportation, and the costs that would impose on states.

Texas and 25 other states sued to halt the programs, an extension of Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans. The larger program, known as DAPA, would offer three-year work permits to parents of citizens and other legal residents, but not recent arrivals or those with serious criminal records.

Critics of the programs say they would force state taxpayers to pick up the tab for millions of immigrants. Supporters counter that states should not interfere with federal immigration law.

Lawyers for the administration argued Friday that the federal government, not the states, sets immigration policy and that the president acted properly when creating DAPA and DACA.

“Texas believes it can hail the federal government into court and prevent it from making changes to immigration policy,” Benjamin C. Mizer, principal deputy assistant attorney general for the Justice Department’s Civil Division, told a panel of federal judges. “When the states operate in the realm of immigration policy, they are operating in a realm that is exclusively a federal one.”

Texas’ argument that states have standing to file the lawsuit, Mizer said, “flips federalism and the supremacy clause on its head” while “it’s our position that we’re at the apex of executive authority.”

“We understand that the states feel the impact of federal immigration policy, particularly on the border,” he said, “but that doesn’t mean they can block it.”

Texas Solicitor General Scott Keller countered that, “We are not trying to block federal statutes. Quite the contrary, we are trying to get the executive to abide by congressional statutes.”

Keller said that when states entered the union and “surrendered their sovereign rights in the immigration context, they did so with the understanding that Congress would regulate it.”

“Congress did not intend such a sweeping delegation of executive authority,” he later added.

He insisted Texas would face numerous costs associated with the programs, including the cost of issuing driver’s licenses.

“The states have not manufactured standing” to file the lawsuit, he said, but have a “personal stake” in the matter.

The arguments were heard by three judges selected at random from the 5th Circuit Court of Appeals: Jennifer Walker Elrod, Jerry E. Smith and Carolyn Dineen King.

They asked plenty of questions.

King, a moderate appointed by President Carter, used her questions to emphasize that the Obama administration already has the authority to defer action on individual immigration cases.

“The state’s position is, what you object to here, is the granting of work authorization to these individuals. You don’t want them to have work authorization?” she asked Keller. “You don’t want them to get Social Security numbers and you don’t want them to pay taxes?”

“This is an issue for Congress, the separation of powers,” Keller said.

King replied that Congress funded the Department of Homeland Security and, “gave to the executive branch the authority to prioritize these people.”

Elrod and Smith, both conservatives appointed by Republican presidents, questioned the impact the president’s executive action would have on the states and whether a slew of other landmark cases reinforced their standing to sue.

The conflict over the president’s executive action on immigration began in December, when Texas officials filed suit against the programs, joined by the other states.

In February, U.S. District Judge Andrew S. Hanen an outspoken conservative in the border city of Brownsville, Texas, issued a preliminary injunction preventing the administration from starting the programs.

In May, a three-judge panel of the 5th Circuit refused the administration’s request to lift Hanen’s stay after hearing oral arguments from both sides (that panel included Elrod, Smith and an Obama appointee who dissented).

On Tuesday, Hanen ordered Homeland Security Secretary Jeh Johnson and other administration officials to appear at a contempt hearing next month to explain why, after his injunction, they issued work permits to immigrants who had entered the country illegally. Hanen said the administration can avoid the hearing only by showing they moved to revoke work permits issued after the injunction.

Mizer said the work authorizations Hanen questioned have been canceled, and another lawyer for the Justice Department said officials there have not conceded that the administration violated the injunction.

“There was a miscommunication, and the government has expressed deep regret on that,” Deputy Assistant U.S. Atty. Gen. Beth S. Brinkmann told Friday’s panel.

Hanen has admonished the administration for proceeding with the programs despite his injunction, calling them “unacceptable” and “unprofessional” and saying he was shocked and surprised at their “cavalier” attitude — comments Elrod paraphrased in court Friday.

“That’s highly unusual, isn’t it, because the government conducts itself so well?” Elrod wryly observed of the judge’s critique.

The judges were not expected to rule immediately. When they do, either side can appeal to the Supreme Court, which could delay a final decision in the case until the end of Obama’s presidency.

About a dozen states, including California and New York, filed a friend-of-the-court brief supporting Obama’s executive action. Los Angeles joined an alliance of cities voicing support, which released a statement Friday noting that, “From Texas to Ohio, Missouri to Georgia, all of the major cities with substantial immigrant and non-immigrant populations are opposing the lawsuit their states have filed, and are standing with our nation in the fight for common sense immigration reforms that bring economic benefits to all of us.”

U.S. Rep. Luis Gutierrez, a Chicago Democrat, sat in the front row of the packed gallery Friday, and emerged from court saying he was “aghast” at Keller’s argument that the administration doesn’t have the authority to allow millions of immigrants to stay and work legally.

“What they said is they believe there should be two sets of rules: one for undocumented workers, one for the rest of the workers,” Gutierrez said, dismissing the argument as “wage theft.”

He was quickly immersed in the crowd of several hundred immigrants on the courthouse steps, some toting signs that said “Stop tearing families apart” and “Immigration relief now!”

Norma Torres, 43, of Los Angeles, was among them. She came with her 6-year-old son, Esau, and a group of immigrants’ advocates. A landscaper, she is DAPA eligible, and wants the right to work legally.

“I don’t want to be in the shadows,” Torres said. “I think something positive will happen. The judges have seen the struggle we are going through.”

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