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Appeals Court Upholds Injunction Against Obama’s Executive Immigration Action

Appeals Court Upholds Injunction Against Obama’s Executive Immigration Action

Big blow to immigration activists who hoped Obama would go it alone — on to Supreme Court?

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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Subotai Bahadur | November 9, 2015 at 9:47 pm

Keep in mind two things:

1) Neither the law nor the Constitution restricts Buraq Hussein the First.

2) Neither do they restrict the Supreme Court. Buraq has 5 votes in his pocket on any critical matter. Ginsburg, Sotomayor, Kagen, Kennedy, and Roberts.

Subotai Bahadur

Excellent news well covered

A big Thank you has to go to then Attorney General and now Governor Greg Abbott of Texas. He lead the 26 State team that opposed Obama’s illegal executive order.

Something very important to remember.
From the last sentence in the story.

“Twenty-six states had conservative governors and attorneys general to support this lawsuit. Local elections matter.”

No doubt this criminal administration is plotting for the next illegal action.

    platypus in reply to Common Sense. | November 10, 2015 at 3:58 am

    Agreed. It’s too bad that Texas didn’t apply similar zeal to the Lawrence v Texas case. The Texas AG should have taken over the defense of the government in that case and argued that public health concerns were a basis to retain the criminal law as is. Instead, the appeal was allowed to proceed to the USSC while represented by a local prosecuting attorney sympathetic to the defendants. In short, the prosecutor wanted to lose the appeal. And he/she did.

    I don’t know if Abbott was the AG when that case happened. If he was, then I hope that this advocacy that he is currently displaying is what the future holds.

    GrumpyOne in reply to Common Sense. | November 10, 2015 at 8:11 am


    Abbott is a brilliant tactician and a far better governor than Perry ever thought of being.


Politically, how does this play out? Obama continues to do what he wants and the constitution be damned while our immigration problem still is a major concern.

    Estragon in reply to natdj. | November 10, 2015 at 12:41 am

    Just so. Obama cannot give the illegals legal protection against deportation, but that doesn’t mean he will actually deport them. But at least the scheme to issue green cards illegally has been blocked.

      jimb82 in reply to Estragon. | November 10, 2015 at 2:00 am

      As the opinion points out, if the illegal aliens had “lawful presence” in the US, which DACA gave to DREAMers and this action would have given to the parents if it had not been stayed by the trial court, the parents would have immediately been eligible for 3 years of retroactive Earned Income Tax Credit. In other words, a big fat Uncle Sam Treasury check to millions of illegal aliens.

Welp if he can’t get this through he’ll just prop up the economy with enough QE until the election and let the economy tank then blame Bush and the Republicans.

It sounds stupid, but nearly half of America will believe anything he says.

A few instances of “executive order” above need to be replaced with “executive action.” Obama did not even issue and sign an executive order for the DAPA action.

Obama like King( dictator) Andrew will say ” Mr Roberts has made his decision , now let him enforce it”

Correct me if I’m wrong but isn’t the Supreme Court unlikely to take up a case that has been upheld in all the lower courts?

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.”

Glad to see the court taking a stand on this. One of the left’s favorite tactics is to try and force everyone to use the words of their choosing. They know they can win the debate if they can control the terms of the debate. People need to stop giving up this ground. Push back. Foreigners in this country illegally are not “undocumented immigrants” or “Americans in waiting” or any of the other silly euphemisms the left makes up; they’re illegal aliens. And it’s good to see somebody in a position of power finally acknowledging that.

Sammy Finkelman | November 11, 2015 at 11:26 am

Let me take a jab at trying to figure out what’s going on here, legally:

At this stage, this is solely a procedural issue. The only live issues are standing to sue and when can an injunction be issued.

The merits of the case only come in, in terms of attemtping to evaluate how the case will eventually be decided. (because that’s one of the factors crucial for granting an injunction.)

The issues are:

1) Standing to sue (where the court was clearly striving to reach a conclusion.)

2) Whether the state is very likely to win on the merits (the issue is violation of the Administrative Procedures Act – and basically is: Did President Obama create a new regulation, or not? Because if he did, it wasn’t the right way. The government’s claim is that what President Obama did does not amount to a regulation, i.e., it’s just informal guidance, enforced by the possibility of official discipline, and does not give any cause of action to anyone who is treated contrary to his instructions, as a true regulation would, and therefore the APA does not apply.)

3) Irreparable harm to the state (reaching here too – it is pretty irreversible and irreparable, but there’s a big question as to whether there is any harm to the state. It has to be more than trivial.

The court decided the first two of those questions – that there was standing, and that the state was likely to prevail, but I don’t think they gave any reason for holding the last one. The court treated the requirements for standing and the requirements for standing as one and the same, but the court I don’t think demonstrated that the requirements for standing are the same as the requirements for an injunction.- it just assumed it.

Maybe the effects can be trivial to get standing, but trivial effects probably should not be eough to cause an injunction to be issued.

There are great policy and procedural questions here, and some important effects, like on taxation, that, however, don’t affect the state of Texas, but to say there is more than trivial harm to the state of Texas as a result of letting Obama do what he wants, you have to side with one side of a policy debate.

Which the court really should not be doing. There are legitimate arguments on the merits.

Here’s where other states could come in and argue there is harm from not letting this go through.

Note: By appealing, the Obama Administration is actually postponing any possible decision on the merits, in favor of a longshot chance to reverse the injunction. Of course they won’t be around by the end if they went right to the merits.

The Supreme Court is probably actually unlikely to take the case, unless maybe other states intervene on the other side, unless it wants to make a ruling on just what are the grounds for an injunction. It may watch the way the election campaign is playing out.

If two states sued each other, maybe it could decide the whole thing right away, but the case is not set up like that now.