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Obama immigration plan loses big in 5th Circuit ruling

Obama immigration plan loses big in 5th Circuit ruling

Order halting executive amnesty stays put

Today the 5th Circuit Court of Appeals denied a request filed by DOJ attorneys to lift an order banning the implementation of President Obama’s “executive amnesty” plan.

In their ruling, the court held that a previous injunction put in place by U.S. District Court Judge Andrew Hanen would remain in place—because the federal government was “unlikely to succeed on the merits of its appeal for the injunction.”

Translation? They’ve got nothing.

This isn’t a final ruling, but the 42 pages of the decision contain a thorough takedown of the challenge to the injunction, as well as a discussion on the merits of the states’ case against the federal government. When addressing the matter of the “public interest,” the Court sides decisively with the states (and teases out a major inconsistency in the government’s reasoning):

The last factor, “where the public interest lies,” id. (quoting Nken, 556 U.S. at 426), leans in favor of the states. The government identifies several important interests: It claims a stay would improve public safety and national security, provide humanitarian relief to the family members of citizens and lawful permanent residents, and increase tax revenue for state and local gov- ernments. To the contrary, however, and only by way of example, on March 16, 2015, the Attorney General, in opposing a motion to stay removal in an unre- lated action, argued to this very panel that “granting a stay of removal . . . would impede the government’s interest in expeditiously . . . controlling immi- gration into the United States.” Presumably, by referring to “the government’s interest,” the United States is referring to “the public interest.”

The states say the injunction maintains the separation of powers and ensures that a major new policy undergoes notice and comment. And as a prudential matter, if the injunction is stayed but DAPA is ultimately invalidated, deportable aliens would have identified themselves without receiving the expected benefits. The public interest favors maintenance of the injunction, and even if that were not so, in light of the fact that the first three factors favor the states and that the injunction merely maintains the status quo while the court considers the issue, a stay pending appeal is far from justified.

They also shot down the government’s “abuse of discretion” argument:

The government maintains that the nationwide scope of the injunction is an abuse of discretion, so it asks that the injunction be confined to Texas or the plaintiff states. But partial implementation of DAPA would undermine the constitutional imperative of “a uniform Rule of Naturalization” and Congress’s instruction that “the immigration laws of the United States should be enforced vigorously and uniformly.”130 A patchwork system would “detract[] from the ‘integrated scheme of regulation’ created by Congress.” Further, there is a substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states.

Texas Governor Greg Abbott took to Twitter to share the news:

Texas has reason to smile—the press may not love this case, but the 26 states challenging Obama’s executive amnesty are in this for the long haul.

Politico explains the Administration’s options:

The Obama administration can now turn to the U.S. Supreme Court for a green light to proceed with the program, or Justice Department officials could wait until the 5th Circuit rules on the merits of U.S. District Court Judge Andrew Hanen’s legal rationale for the injunction he entered in February. A different panel of the appeals court is expected to hear arguments on those issues in early July.

The three 5th Circuit judges deciding the case were randomly selected. Two of the three judges selected were appointed by Republican presidents, while the other was appointed by Obama.

Hanen ruled in February that Obama’s November actions expanding a program for illegal immigrants who entered the country as children and creating a new program for illegal immigrant parents of U.S. citizens violated federal law because they were not properly announced and opened for public comment before being put into effect.

This is a huge blow, and not just from a legal standpoint.

Earlier this year I wrote about the Administration attorneys’ disastrous confrontation with Judge Hanen. Hanen dressed down counsel after he discovered that they had misled him about the status of more than 100,000 applications for deferred action that had been initiated after Obama announced his amnesty program last November. Administration attorneys claim that they merely presented all the information about what had and had not been done to implement the program in a “confusing” manner, but Hanen didn’t buy it. He denied an emergency stay barring his previous injunction, which is how the case made its way to the 5th Circuit.

Many on the left doubted Hanen’s ability to fairly decide the case after the incident with the DOJ attorneys; today’s ruling by the 5th Circuit, however, vindicates both Hanen and his unwillingness to let the Administration run amok while challenges to the new immigration laws make their way through the courts.

We’ll keep you posted on what the Administration does next.

You can read the full ruling hereThis post has been updated.


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The Fifth has been a historically VERY solid court, with it being VERY seldom reversed by the Supremes.

So this is a BIG deal. And the judge in the district court is NOT finished spanking the DO(racial)Justice, either.

Unfortunately, this will have no real impact. Just window dressing. The only thing that will have impact is to forcibly remove the invaders and send them back, in pine boxes if necessary.

Not A Member of Any Organized Political | May 26, 2015 at 4:34 pm

Time to “deport” the illegal immigration/new slavery plan of Obama – along with its creator(s).

Snark Snark!

The open borders crowd are not happy either. This was their baby. They were wanting this so bad that they were willing to do anything to achieve this. Even commit perjury. Which they did on numerous occasions. Now maybe the District Judge will rule that the Obama enforcement policies are unconstitutional too.

It took the States, not the GOPe to get us this reprieve.

I look for the GOPe to undermine this at the first opportunity. the COC is probably on the phone as I type this making strategy with McConnell and Boehner staff.

The best news out of this is the case will go forward – and the Obama team has poisoned the well for themselves to a large extent. But it’s still in District Court. So the case must be heard, appealed, heard by the Court of Appeals panel, appealed en banc, heard by the full Court of Appeals, appealed to SCOTUS, and their decision announced.

Think all that happens within the next 604 days? No way, Jose.

– –

So Obama will be out of office. We just need to ensure a Republican replaces him, and not that thieving witch.

This will change absolutely nothing. The Obama administration will continue to disobey the law and trample on the Constitution, and no administration official will suffer consequences.

    And ‘we’ll’ tolerate the GOP standing by and doing nothing.

    The GOP has become as neutered as the Baltimore police department. The difference is, we — WE — have the power to dump Boehner and McConnell.

nordic_prince | May 26, 2015 at 7:24 pm

Hope the Fifth Court continues to bitch slap Zero. He needs it in the worst way, since nobody’s ever bothered saying “NO” to him his whole life ~

^^ except Reggie Love with a headache

FrankNatoli | May 26, 2015 at 8:39 pm

Note it was 2-1 decision. Dissenting Judge Stephen A. Higginson was of course appointed by Obama. Thank you, Democrat voters!

    jimb82 in reply to FrankNatoli. | May 27, 2015 at 3:16 pm

    Although in his defense, he did say that on the case as presented, he would also vote to deny the stay if it were a justiciable topic — it was just his opinion that DAPA was completely within the agency’s discretion and therefore the courts had no jurisdiction to review it.

    Now, he also spent much of his opinion writing about something irrelevant. The trial court’s preliminary injunction was based on the likelihood that Texas (and the 25 other plaintiff states) would be able to demonstrate at trial that DHS did not follow the Administrative Procedures Act. He instead went off repeatedly into dicta about how immigration was exclusively a federal responsibility. That may be true, but also has nothing to do with whether the DHS followed the APA.

    He also stated misleadingly, at least twice, that the Obama Administration was deporting more illegal aliens than any administration ever before. That is only the case because they changed the definition of deportation to include what used to be called “border removals” and not counted as deportations.

Subotai Bahadur | May 26, 2015 at 10:09 pm

I note the White House reaction from WEASEL ZIPPERS on the sidebar of this blog:

“Today, two judges of the Fifth Circuit chose to misinterpret the facts and the law in denying the government’s request for a stay,” White House spokesperson Brandi Hoffine said in a statement to Breitbart News.

That is just one small step from saying that he knows the law better than the 5th Circuit [and the judges deliberately committed criminal malfeasance in their decision] and he will do as he pleases. With an implied question as to how many divisions the two judges have on call.

Keep in mind that the original injunction by Judge Hanan which was upheld by the 5th Circuit has so far been “accidentally” violated multiple thousands of times that we know of [and probably many more]. The attorneys for the Federal government deliberately lied to the court in those cases. No one has been sanctioned in any way.

I’m glad a court has made the moral statement for the rule of law. That does not in any way mean that we are actually under the rule of law. But I want the process to proceed because “a decent respect to the opinions of mankind requires that they should declare the causes which impel them” towards whatever the end game becomes.

And I do expect that small step to be taken soon.

I wonder that no one, to my knowledge, has pleaded that the federal government has already waived the “in 24 states this doesn’t apply” argument by answering the 25 (later 26) states’ complaint, without first pleading lack of the jurisdiction of the district court outside the 25/26 plaintiff states.

There is an update to yesterday’s decision from the 5th Circuit. It seems that Barry has stated that the Administration will not appeal this decision to SCOTUS. They are hoping that the 5th Circuit will rule in favor of them on the total package. Somehow I don’t think that is going to happen either.