New York Times
By Julia Preston
July 10, 2015
Government
lawyers labored on Friday to persuade federal appeals court judges here
to allow President Obama to move ahead with sweeping initiatives to
protect immigrants
in the country illegally. But the judges’ questions seemed to make it
ever more unlikely that the president’s programs, which he has hoped
would be a central piece of his legacy, would start any time before the
last months of his term, if at all.
A
panel of three judges of the United States Court of Appeals for the
Fifth Circuit heard arguments in a lawsuit by Texas and 25 other states
challenging executive actions
Mr. Obama announced in November that would give temporary reprieves
from deportation to as many as four million immigrants and also permit
them to work.
In
February, a federal district judge in Texas blocked the programs. On
May 26, a panel of the Fifth Circuit denied the administration’s
emergency request to cancel that
injunction, with two judges supporting the denial and one dissenting.
This time, the judges heard a broader appeal by the government on the
challenge to the executive actions.
But
even though the judges issued no decision on Friday, it seemed highly
probable that the administration would lose. By a stroke of bad luck for
Mr. Obama and good fortune
for the states bringing the lawsuit, two judges on Friday’s panel —
Judge Jerry E. Smith and Judge Jennifer Elrod — are the same
conservatives who ruled against the administration in May. Court
officials said both panels had been randomly selected, well before
the administration even brought its case to the Fifth Circuit.
A
setback now would be decisively damaging to the president’s argument
that he has full authority to carry out the vast programs nationwide and
would leave the administration
little choice but to take the case to the high-stakes and slow-moving
deliberations of the Supreme Court and to hope for a favorable ruling
before the end of its term in June of next year.
Mr.
Obama has run into far deeper legal trouble than officials anticipated
when they decided last year to create a program by executive action,
without approval by Congress,
extending deportation deferrals and work permits to millions of
undocumented immigrants who are parents of American citizens or legal
residents.
Judges
Smith and Elrod peppered the government’s lawyer, Benjamin C. Mizer, a
principal deputy assistant attorney general, with skeptical questions
about his contention
that the administration had ample authority to focus immigration
enforcement on deporting immigrants who commit crimes or threaten
national security, and to defer deportations of those who pose little
risk to public safety and have families in the United States.
Referring
to Homeland Security Secretary Jeh Johnson, Judge Elrod asked, with a
note of incredulity, “So the secretary has boundless discretion to give
work authorization
to whomever he wants and it is not constrained by congressional law?”
The
administration’s arguments about the president’s powers have faltered
over Texas driver’s licenses. Texas has said it would be a burden to
have to pay at least $130
each for driver’s licenses for as many as 500,000 unauthorized
immigrants who could obtain the licenses if they received deferrals under the president’s programs. Judge Smith, in his 42-page opinion in
May, agreed.
But
Scott Keller, the solicitor general of Texas who argued for the states,
drew concern from all three judges when he said Mr. Obama’s programs
were not only a “sweeping
assertion of executive power” but were breaking the law. His arguments
raised complex new issues for the judges to consider this time around,
probably extending the time before they rule.
The
judge who sided with the administration in May, Stephen A. Higginson,
was not on the panel on Friday. The third member was Carolyn D. King,
nominated in 1979 by President
Carter, and formerly chief judge of the Fifth Circuit. She sharply
questioned Mr. Keller, the Texas lawyer.
Jurists
and legal experts familiar with procedures in the Fifth Circuit court
said it was coincidence — and very unusual — that the two panels hearing
different phases
of the immigration lawsuit included two of the same judges. Judge Smith
is an outspoken conservative who has wrangled publicly with Mr. Obama
over the extent of the president’s powers.
Court
officials said the chief judge, Carl E. Stewart, was so concerned it
might appear that the court had acted improperly to influence the
immigration case that he ordered
a clerk to flip a coin in the presence of witnesses to decide which of
two panels scheduled to hear cases this week would handle the Texas
lawsuit.
The
debate in the hushed, elegant courtroom was overwhelmed several times
by the sounds of drums and horns from about 600 protesters from
immigrant rights groups in the
street outside, including people who traveled from California, Arizona,
Texas and Alabama.
A
smaller group sat down in the street in front of the offices nearby of
the federal Immigration and Customs Enforcement agency. A spokesman for
the protesters said 14
people were arrested, but were quickly released.
“People
are still getting deported every day,” said Saket Soni, the executive
director of the New Orleans Workers’ Center for Racial Justice. He said
the demonstrations
were intended to “supply hope to the movement and signal to ICE there
is much more of this coming.”
The
administration has faced even more serious legal trouble with the
federal district judge in the case, Andrew S. Hanen. He has chastised
officials for failing to inform
him that more than 100,000 deferrals with extended three-year terms had
been issued under the president’s programs to young immigrants before
he imposed the injunction. He ordered the government to cancel and
collect about 2,000 three-year work cards that
were granted to youths after the injunction took effect and to issue
new cards with the original term of two years.
Infuriated
that the administration had not collected every card, on Tuesday, Judge
Hanen issued an unusually harsh rebuke, calling the officials’ conduct
“unacceptable
and completely unprofessional.” In an action federal judges rarely
take, he ordered the secretary of Homeland Security, Mr. Johnson, to
appear in person in his Brownsville court on Aug. 19 to explain why the
judge should not find him in contempt.
Correction: July 12, 2015
A
previous version of this article incorrectly described an order by the
federal district judge in the case, Andrew S. Hanen. He ordered the
government to cancel and collect
about 2,000 work cards with three-year terms that were granted after he
halted the programs and to replace them with work cards with the
original term of two years. He did not order the cancellation of more
than 100,000 deportation deferrals with three-year
terms that were granted before his injunction took effect.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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