Fifth Circuit Court Ruling: A Victory—But Patriots Must Make Immigration An Election Issue
May 30, 2015, 08:01 PM
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The Fifth’s Circuit’s welcome decision to deny the Obama Administration’s appeal to stay the injunction against its Executive Amnesty created a big problem for the President’s lawless scheme. Unfortunately, it didn’t kill it. In fact, the ruling only makes it more vital that patriots push the immigration issue during the upcoming presidential campaign.

As the court ruled on arcane and mundane legal issues, and most of the MSM legal analysis is slanted, here’s a summary of what the decision actually means for immigration patriots:

What the Court ruled.

Led by Texas, 26 states, sued the Obama Administration over his Executive Amnesty, officially known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The states made three legal arguments against DAPA.

  • The Administration did not follow proper administrative procedures in implementing DAPA.
  • Congress did not delegate the President authority to enact DAPA.
  • The President abdicated his duty under Article II, Section 3 of the Constitution (which states that the President “shall Take Care that the Laws be faithfully executed.”)
In response, in addition to challenging the states’ arguments, the Administration claimed the plaintiffs did not have standing to sue. Put another way, the Administration argued that even if the President’s actions were illegal, the plaintiffs did not have the right to stop it in court.

Of course this is a technicality, but it’s an important one. The issue of standing has tripped up other legal attempts to stop President Obama in the past.

Thus in 2013, Judge Reed O’Connor (appointed by George W. Bush) held that President Obama’s Executive DREAM Act Amnesty was likely illegal and unconstitutional—but that the Immigration and Customs Enforcement [ICE] Agents who filed the suit lacked standing to challenge it [Suing for Deportation, by Dan Cadman, Center for Immigration Studies, June 2014]. As recently as April 2015, the same Fifth Circuit unanimously ruled that the Agents did not have standing.

But in the current litigation, District Court judge Andrew Hanen issued a preliminary injunction against DAPA. (In issuing a preliminary injunction, the plaintiffs do not need to absolutely prove their legal case, just show it’s likely they will likely do so). He held that the states had standing to sue and that the Administration had likely not followed proper administrative procedure.

Judge Hanen found DAPA would create a new class of people who (of all things) could apply for driver’s licenses. The cost of supplying these licenses constituted an injury and therefore the states had standing.

However, Hanen explicitly stated he was not ruling on the substantive law issues or constitutional law, but merely that specific improper procedure. That said, he suggested DAPA may very well be illegal and violate the “Take Care that the Laws be faithfully executed” clause.

In its appeal of the preliminary injunction, the Obama administration only challenged the states on the issue of standing. It claimed that DAPA did not injure Texas and therefore the states did not have standing.

Of course, from a common-sense standpoint, legalizing millions of illegal aliens will unquestionably injure a border state like Texas by inflicting crime, welfare, and social costs on its taxpayers. Yet the federal government argued it was actually doing Texas a favor because DAPA would result in “increased tax revenue, decreased reliance on state-subsidized health care, better financial support for DAPA beneficiaries’ children, increased revenue from vehicle-registration fees, and decreased auto insurance costs.”

However, the Fifth Circuit Court of Appeals chose not address any of these claims, instead sticking to the issue of the driver’s licenses.

The Fifth Circuit did not explicitly rule on the actual merits of the states’ legal argument against DAPA. But it did ruled against the federal government on another matter. The federal government had also argued that states did not have standing on the grounds that President’s enforcement actions were not “justiciable”—meaning the courts did not even have jurisdiction to review it. Determining whether the court could or could not review the case is similar to analyzing whether the President has the legal authority to issue DAPA.

Here, the Fifth Circuit Court of Appeals found that DAPA was not a case of mere “inaction” or prosecutorial discretion because “issuing work authorizations to DAPA beneficiaries is an affirmative action.” At the same time, they qualified that whether “”the Secretary has the authority to do so remains an open question.”

The bottom line: the Fifth Circuit ruled that the states have standing because DAPA could result in an “injury” to them. That was enough to keep Judge Hansen’s injunction against DAPA in place.

What the Court Did Not Rule

When I talked to your average American after SB 1070 was passed in Arizona, I often heard the question: “Why doesn’t the 10th Amendment protect Arizona’s right to enforce the law?”

A reasonable question, but sadly the Constitution rarely matters in constitutional law. It would be nice if the plain words of the Constitution actually constrained the courts and the government, but they have failed to do so for at least 75 years. Even Scalia, Thomas, and Alito’s concurrences in the SB 1070 case do not mention the 10th Amendment or states’ rights.

Similarly, many conservative commentators and politicians have latched on to the Take Care clause to challenge DAPA. To your average citizen, President Obama is obviously not faithfully executing our immigration laws. In fact, he’s expressly ignoring them.

However, Amnesty supporters will point out the Federal Government has grown so large that if the president faithfully executed all the laws, almost everyone would be in jail.

Thus, the Courts have rarely relied on the “Take Care” clause to invalidate what is referred to “agency discretion” or “prosecutorial discretion.” Still, some respected law professors on the Left and Right, such as John Yoo and Jonathan Turley, have argued that the president’s Executive Amnesty goes far beyond typical prosecutorial decision.

But while Judge Hansen hinted that he was sympathetic to the argument, the Fifth Circuit Court of Appeals did not take up this argument.

VDARE's Federale has argued the Fifth Circuit decision’s latest decision has "essentially reversed" its earlier decision on the ICE Agent's standing. My view: this is true to the extent that now states will have standing to challenge the DAPA and DACA. But the court in Texas v. United States emphasized that their opinions are consistent with the earlier decision because it had "expressly declined to address the driver’s license theory" and "did not hold that deferred action under DACA was an exercise of prosecutorial discretion or that the criteria were not binding."

Law is complex and judges are often arbitrary in political cases involving novel issues. So it's hard to predict how this case's precedent will affect future immigration cases. However, for right now, Texas v. United States will stall Executive Amnesty for the foreseeable future and guarantee the case will be heard on the merits.

What will happen next?

The Obama Administration chose not to petition all 15 5th Circuit Judges en banc or the Supreme Court to stay the injunction. So, with the standing issue more or less settled, the case will now turn as to the legality of the Executive Order. This means it will go back to another 5th Circuit panel to decide the case on the merits.

While Judges Smith and Elrod—both GOP appointees—hinted very strong skepticism of the merits of DAPA, the three judges on the next panel will be selected at random from the 15 active and seven senior judges in the Circuit. Of those, 11 of the active and 4 of the senior judges are GOP appointees and most of them are reliably conservative.

But this does not necessarily mean Texas will prevail. After all, as I noted above, a panel of Fifth Circuit judges including two Republican appointees ruled against the plaintiffs in the DREAM Act lawsuit. That said, the specific issues and arguments were different, so some of the judges in that case may well rule against the Administration in the DAPA case.

Given the Fifth Circuit’s conservatism, if the Administration wins, Texas will petition for an en banc review, meaning the case will be heard by all the judges of a court rather than just be a panel selected from them. If this happens, I suspect Texas will prevail.

And if Texas wins, the Obama Administration will appeal to the Supreme Court.

Once there, it is hard to determine what will happen. It’s a safe bet that all four Democratic appointees will vote in favor of the Obama administration, but Roberts and Kennedy, who both voted for the states in the Arizona E-Verify case but partially against them in the SB 1070 case, are wild cards.

Bottom line: here is much good news to be found here, despite the indecisiveness of all this. In addition to the practical effect of blocking Executive Amnesty, it is now almost impossible for the litigation to be resolved before the 2016 election. This will make immigration a top campaign issue in the both the primaries and general election.

Of course, there is a downside: it will allow the Republican candidate to pose as tougher than the President and Hillary by opposing the Executive Amnesty, while still claiming that he supports “comprehensive immigration reform” in theory…and maybe in practice.

Thus, it’s imperative that immigration patriots use this case to force immigration as an issue during the primaries—but not allow it to frame the immigration debate.

Patriots need to push for a frank discussion of the entire issue so the eventual nominee will support an across-the-board patriotic immigration reform platform—regardless of how the courts resolve this particular litigation.

John Reid [email him] is an American citizen and a recent law school graduate.