POSTED ON MAY 26, 2015 BY PAUL MIRENGOFF IN IMMIGRATION, LAW

FIFTH CIRCUIT DENIES STAY OF THE INJUNCTION AGAINST OBAMA’S EXECUTIVE AMNESTY

A panel of the Fifth Circuit Court of Appeals has denied the Obama administration’s motion to stay the preliminary injunction against implementation of its Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) pending appeal. The Court also declined to narrow the injunction’s scope. As readers will recall, Judge Hanen issued the injunction on the view that the government is likely to lose the lawsuit challenging DAPA

The Court of Appeals denied the government’s motion because it concluded that “the government is unlikely to succeed on the merits of its appeal of the injunction.” The decision was 2-1, with the Republican appointed judges voting to affirm and the Obama appointed judge voting to reverse.

The opinions are here. The majority, per Judge Smith, undertakes a long, persuasive slog through the factors that apply when a party seeks to stay an injunction pending appeal. As such, there is no single “money quote.”

The majority’s discussion of “prosecutorial discretion” — the basis upon which Team Obama purports to justify granting amnesty and eligibility for benefits to millions of illegal immigrants — is illuminating, though. Here is what Judge Smith had to say about this issue:

Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low-priority aliens.

If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification. Regardless of whether the Secretary has the authority to offer
those incentives for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.67 And as shown above, neither the preliminary injunction nor compliance with the APA requires the Secretary to prosecute deportable aliens or change his enforcement priorities.

This logic seems unassailable. Unless you’re a partisan, I don’t see how you reject it.

The Justice Department is said to be “reviewing its options.” They include attempting to get the full Fifth Circuit to reconsider the panel’s ruling.

Both the State of Texas and the Obama administration have signaled their willingness to take the case to the Supreme Court. That Court would be unlikely to decide it until 2016 — a presidential election year.

Another option would be simply to wait for a full hearing of the government’s appeal of the district court’s underlying decision, which is scheduled for July. Jonathan Adler points out, however, that this appeal will be heard by same panel rendered today’s decision, which provides “a fairly good indication of how the court is likely to rule.”

I’m not personally up-to-date with the Fifth Circuit anymore, but it is said to a be pretty conservative court. Thus, Adler believes the Obama administration might well proceed directly to the Supreme Court.

We will probably have more to say about today’s decision, including perhaps the dissent.

THE LAW PROFESSSOR HAS BEEN SCHOOLED:  WSJ’s editorial about the Fifth Circuit’s refusal to reverse the preliminary injunction halting the President’s unilateral immigration legislation executive action:

America’s most powerful former law professor is getting a re-education in the Constitution, and on present course President Obama might flunk out. Witness Tuesday’s federal appeals-court rebuke of his 2014 immigration order, including language that suggests the Administration will also lose on the legal and policy merits. . . .
The Administration claims it is merely allowing immigration officers to apply routine “prosecutorial discretion” on a case by case basis not to deport illegals. But the court noted that if this were true “we would expect to find an explicit delegation of authority” to implement the Obama rule—“a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.” (Our emphasis.)
In summary, said the court, “the United States has not made a strong showing that it is likely to succeed on the merits.” . . .
Mr. Obama could have avoided this mess if he had recalled his law classes on the separation of powers. That’s where he should have learned that the federal government can’t run roughshod over states and that the courts are an independent branch of government that can call out a President for breaking the law.

Yep–he would have failed my constitutional law class if he had tried to justify such sweeping authority to categorically rewrite existing law and confer benefits Congress never provided as “prosecutorial discretion.”  It’s almost as though the Fifth Circuit has been reading my House Judiciary testimony on the topic.

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Posted at 8:52 pm by Elizabeth Pric