Government & Politics

Fifth Circuit Poised to Short Circuit Amnesty

Appeals court hears oral arguments against Obama's executive actions.

Paul Albaugh · Apr. 21, 2015

The Fifth Circuit Court of Appeals heard oral arguments between a 26-state coalition opposed to Barack Obama’s executive amnesty plan and federal lawyers defending those actions. Friday’s hearing may prove critical.

Recall that Obama’s immigration plan would stop deportations and offer work permits for as many as five million illegal immigrants already here in the United States. Fortunately, back in February, District Court Judge Andrew Hanen of Texas issued an injunction halting Obama’s executive actions. Hanen declared Obama “had abused his power and violated administrative procedures.”

Earlier this month, Hanen made clear he was not at all happy about being deceived by the Obama administration, which issued more than 100,000 work permits to illegal immigrants two weeks before Hanen’s injunction. Rather than throw out the case, however, Hanen opted for the Fifth Circuit to weigh in, where Obama’s lawyers demand the injunction be lifted.

According to The Hill, “Deputy Assistant Attorney General Benjamin Mizer told the three-judge panel that the states, led by Texas, had no legal standing to bring the lawsuit because the federal government has sole jurisdiction over immigration policy.”

Mizer is correct that the federal government should have jurisdiction over immigration policy, but when a sitting president usurps the law, or issues an executive order or plan that is contrary to existing law, does he really think the states should just sit back and watch?

Moreover, when a president decides he will bypass Congress to do as he pleases with immigration policies, it becomes a matter of security for the states. They have every right to be concerned for their citizens specifically, but also the nation as a whole.

The New York Times notes that Judge Jennifer Elrod, a George W. Bush appointee, asked Justice Department lawyers “whether there were any limits on the administration’s ability to change immigration enforcement.” She stated, “We are looking at unlawful action which no one could challenge” and suggested that “the government’s arguments could be stretched to allow every undocumented immigrant to remain in the country legally.”

After the hearing, Attorney General Ken Patton of Texas said in a statement, “The executive branch is bound by our legal system and U.S. Constitution — it cannot simply create laws unilaterally.” Texas and 25 other states understand the Constitution and what the executive branch can or cannot do within its limitations. The more difficult task is getting Obama to abide by those limitations.

Meanwhile, Judge Steven Higginson, an Obama appointee, gave every indication that he’s on Obama’s side. Who would have guessed? Higginson claimed Obama’s “program is different” and, Politico reports, “on about a half dozen occasions Higginson also suggested that one reason to view the program as a form of prosecutorial discretion was because it enticed illegal immigrants to come out of the shadows and left open the possibility they could be tracked down and deported later.”

Higginson further asserted that “the first step to removing them is getting them into the database.” So in his view, Obama’s program would both allow illegal immigrants to remain in the country and make it easier to deport them after being entered into a database. Sure, that’s going to happen.

Finally, the economic cost of Obama’s plan is another concern for the 26 plaintiff states. They argue, for example, the deportation deferrals mean costs related to issuing drivers licenses. Naturally, leftists claim legalizing more illegals would result in increased tax revenue and economic benefit. That depends on the math.

Now that the Fifth Circuit Court has heard the arguments from both sides, a ruling will come soon. By all appearances, the court will rule in favor of the states by a 2-1 vote, thereby preserving for a little longer the Constitution and Rule of Law. But it likely won’t end with the Fifth Circuit; this case is probably headed to the Supreme Court.

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