The 5th Circuit Court of Appeals just issued an opinion (full embed at bottom of post) upholding a lower court preliminary injunction against Obama’s unilateral immigration executive order.

The Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program expanded a previous effort, Deferred Action for Childhood Arrivals (“DACA”) by the Obama administration to protect from deportation illegal immigrants who were brought here as minor children, often referred to as “DREAMers.” Under DAPA, parents who were here illegally but whose children were American citizens or lawful permanent residents could also apply for protection from deportation. Obama also expanded the rules for DACA, making even more illegal immigrants eligible to avoid deportation.

DAPA drew a lawsuit very shortly after Obama signed the order last fall. Texas Gov. Greg Abbott (R), who was at that time serving as the state’s Attorney General, led a twenty-six state coalition that opposed DAPA and they successfully argued for a preliminary injunction to be issued by a Texas federal court to prevent DAPA from being implemented.

The federal government appealed that order to the U.S. Fifth Circuit Court of Appeals in New Orleans, but their efforts would once again fail, as the Court, in a 2-1 decision, ruled that the injunction should remain in place.

As expected, Abbott was very pleased with Fifth Circuit’s decision, issuing a statement shortly after the opinion was released. “The court’s decision is a vindication for the Rule of Law and the Constitution,” said Abbott. “The President’s job is to enforce the immigration laws, not rewrite them. President Obama should abandon his lawless executive amnesty program and start enforcing the law today.”

Texas Supreme Court Justice Don Willett also tweeted the news, along with some key language from the decision:

For the non-attorneys, a preliminary injunction functions like a pause button to hold certain legal issues in place while the parties fight in court. To keep this injunction in place, there are certain standards that have to be met, perhaps the most important of which is for the party that wants the injunction to show that their case has a “substantial likelihood of success on the merits.”

This is not the same as being certain that the states will ultimately win their case against the Obama administration, but it is a positive sign that there is a solid legal basis for their argument.

The impact of this decision, and this lawsuit, should not be underestimated. In particular, the court cited findings from the District Court’s opinion that out of an estimated 11.3 million illegal immigrants currently in the U.S., 4.3 would have been eligible to avoid deportation under DAPA. That is more than one out of every three illegal immigrants.

Word smiths and those weary of political correctness will also enjoy Footnote 14, in which the court declares that it will use the words “illegal alien” in the opinion, dismissing other terminology as “needless euphemisms,” to be “avoided as near gobbledlygook.”

The opinion has a large section that discusses the federal governments challenge regarding whether the states had “standing,” or the fully qualified legal status that gives rise to the right to file a lawsuit. Here, the sheer scale of what the Obama administration attempted to do backfired on them. It is all but impossible for the feds to argue that DAPA wouldn’t have an impact on the states when Texas alone anticipated at least 500,000 illegal immigrants would have been eligible for drivers’ licenses under DAPA, “caus[ing] millions of dollars of losses” for the state.

Getting more to the merits of the legal challenge to DAPA, the court noted that “Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.” However, DAPA allowed parents to receive lawful status “solely on account of their children’s immigration status without complying with any of the requirements, enumerated above, that Congress has deliberately imposed.”

In fact, the opinion continues, DAPA’s broad grant of protection negates a number of key laws that Congress enacted, striking at the very heart of our legal immigration system. Specifically, by simply granting eligibility for work authorization, DAPA undercuts several laws designed to “protect against the displacement of workers in the United States,” and to “preserve jobs for American workers.” If implemented, “DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.”

Again, this is not the final step for this lawsuit, but the deliberate and detailed way the court lays out its opinion should be encouraging for those opposed to DAPA. This quote below goes directly to the core of the Obama administration’s arguments for their executive orders:

The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility. Even with “special deference” to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.

The full opinion is embedded below, but as a final important note I would point out that this lawsuit happened, and a major executive order that would have protected millions of illegal immigrants from deportation was prevented from being implemented, not because of anyone in Congress, but because the governments of twenty-six states signed on to this lawsuit. Twenty-six states had conservative governors and attorneys general to support this lawsuit. Local elections matter.

5th Circuit Opinion – Obama Executive Immigration Injunction

This article has been updated with additional discussion from the opinion.

Follow Sarah Rumpf on Twitter: @rumpfshaker.


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