By R. MARK FREY
Last week was a tough week for the Obama Administration in its ongoing effort to resolve some of our country’s immigration problems, too long ignored by Congress. As you may recall, President Obama issued a series of executive actions in November 2014 to address some of the more troubling aspects of our woefully inadequate immigration system. Through power granted him by the U.S. Constitution, he sought to provide temporary relief for some out-of-status immigrants who met certain criteria and expand the field of eligible recipients through DACA (Deferred Action for Childhood Arrivals), among other actions.
Then, in December 2014, a lawsuit was filed by several plaintiff states in the U.S. District Court for the Southern District of Texas seeking essentially to both enjoin President Obama from implementing those executive actions and a decision that his actions violated the U.S. Constitution. On February 16, 2015, U.S. District Court Judge Andrew Hanen issued a preliminary injunction blocking the Obama Administration from carrying out those executive actions, due to take effect on May 19, 2015. On February 23, 2015, the Obama Administration filed an emergency motion with the District Court to stay its preliminary injunction.
On March 12, 2015, the Administration filed as well an emergency motion with the Fifth Circuit Court of Appeals seeking to stay Judge Hanen’s preliminary injunction. On April 17, 2015, the Fifth Circuit heard oral arguments over the matter of issuing an emergency stay temporarily lifting the preliminary injunction or allowing it to remain in place. On May 26, 2015, in a 2-1 decision, a three judge motions panel of the Fifth Circuit Court of Appeals comprised of Judge Jerry Smith (Reagan appointee), Judge Jennifer Elrod (George W. Bush appointee), and Judge Stephen Higginson (Obama appointee) denied the emergency stay request.
Judges Smith and Elrod ruled against the Obama Administration while Judge Higginson issued a compelling and thoughtful dissent critical of both the panel’s decision and District Court Judge Andrew Hanen’s actions. He noted, “Congress could, but has not, removed discretion from DHS [Department of Homeland Security] as to which undocumented immigrants to apprehend and remove first.” Additionally, “I would hold that the underlying issue presented to us – the order in which non-citizens without documentation must be removed from the United States – must be decided, presently is being decided, and always has been decided, by the federal political branches.”
Judge Higginson took District Court Judge Hanen to task for failing to “recognize the important distinction between lawful “status” and lawful “presence.” Whereas legal status implies “a right protected by law,” legal presence simply reflects an “exercise of discretion by a public official.” Notwithstanding Judge Higginson’s sound and well-reasoned dissent, the decision was 2-1, and with that the preliminary injunction stays in place while the lawsuit moves forward.
What next? It doesn’t appear the Obama Administration will seek a stay of the preliminary injunction by going to the U.S. Supreme Court but rather stay focused on its appeal before the Fifth Circuit. It has asked the Fifth Circuit to review the preliminary injunction itself and decide whether it should be allowed to continue, thus blocking implementation of President Obama’s executive actions, or be overturned.
On July 10, the Fifth Circuit will hear oral arguments on this issue and it’s unknown at the present time if the same panel will hear the matter. A different panel could very well lead to a different result. The panel’s composition will, according to the court, be announced about one week before the hearing.
It’s likely, some speculate, the court will not make a decision until later this year, autumn perhaps. And, with that, the clock continues ticking away with the 2016 elections looming on the horizon. This litigation could very well be mired in the courts well beyond November 2016 and even Obama’s presidency. In which case, a key question comes to mind.
Was the impetus for this lawsuit concern over important legal and constitutional issues as claimed by the plaintiffs or simply a desire to clog the courts with frivolous litigation while putting a stop to President Obama’s executive actions, formulated as a proper exercise of his executive powers? Pretty cynical stuff. And, what pray tell is Congress doing about immigration reform? Not much, as it continues to twiddle its thumbs and kick the proverbial can down the road while whistling in the dark.
R. Mark Frey is a St. Paul, Minnesota attorney who has practiced immigration law exclusively for more than 25 years in the Twin Cities with an emphasis on political asylum, family and marriage-based immigration, naturalization, removal defense, appeals, H-1B visas, and religious workers.