The immediate fate of President Barack Obama’s sweeping immigration overhaul now rests with a three-judge appeals panel after an intense legal clash Friday between lawyers for the federal government and for a 26-state coalition that has challenged the executive actions.
A federal district court judge in February ordered an indefinite halt to the president’s plan, which would shield up to 5 million undocumented immigrants from deportation and provide work permits to many of them. The judge, Andrew S. Hanen, in Brownsville, Texas, said Obama had abused his power and violated administrative procedures
The rare 2-1/2-hour oral argument on Friday in the 5th U.S. Circuit Court of Appeals, in New Orleans, offered some hints about the issues confronting the judges as they deliberate in the coming days. Justice Department lawyers came under sharp questioning from one of the judges, who asked whether there were limits on the administration’s ability to change immigration enforcement.
“We are looking at unlawful action which no one could challenge,” said the judge, Jennifer Elrod, an appointee of President George W. Bush. She suggested that the government’s arguments could be stretched to allow every undocumented immigrant to remain in the country legally.
But lawyers for the state of Texas, who are leading the lawsuit against the executive actions, faced skepticism from a judge appointed by Obama. That judge, Stephen A. Higginson, repeatedly suggested that courts should not interfere too much in how federal agencies exercise their authority.
Higginson told Scott A. Keller, the Texas solicitor general, that his argument could hamstring a range of government actions. “That’s a dangerous rule for us to write,” the judge said.
The third judge, Jerry E. Smith, an appointee of President Ronald Reagan, was more reserved as the legal skirmishing played out, interrupted occasionally by the sounds of a protest by several hundred immigration activists who gathered outside the court building.
The panel’s decision will have huge implications for Obama as he seeks to make good on a longstanding political promise to Hispanics to pull back on deportations, which often tear apart immigrant families. The judges did not say when they would rule.
Lawyers for the Justice Department on Friday called Hanen’s February injunction “unprecedented” and urged the appeals court to let the administration begin carrying out the president’s program. Lawyers for the state of Texas called on the court to let the injunction stand.
“The executive branch is bound by our legal system and U.S. Constitution — it cannot simply create new laws unilaterally,” Attorney General Ken Paxton of Texas said in a statement after the hearing.
If the government lawyers fail in their bid to reverse the judge’s preliminary injunction, Obama’s immigration efforts could remain in legal limbo for months, raising doubts about whether the policies will be carried out before Obama leaves office.
The hearing before the three-judge panel allowed lawyers for both sides to make their cases publicly. In most similar cases, legal experts said, appeals courts make decisions based solely on written briefs. In this high-profile case, however, each side had one hour to argue — twice the amount of time generally provided to lawyers in Supreme Court cases.
Lawyers for Obama insisted that the states had no right to challenge the executive actions because they would suffer no direct harm if the moves were carried out.
Obama declared in November that he was operating within his rights to take unilateral action in the face of years of refusals by congressional Republicans to change immigration laws. Advocates for Hispanics hailed the president’s move as a legacy-making effort to address a public policy crisis.
“The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican president and every Democratic president for the past half-century,” Obama said in a speech to the nation on Nov. 20.
But Republicans assailed the executive actions as the latest power grab by a president bent on circumventing Congress. The legal challenge by the 26 states quickly followed.
In its brief to the appeals court, the Justice Department said that in allowing the lawsuit to move forward, Hanen had accepted a legal theory “that would radically expand the ability of states to intrude into this uniquely federal domain.”
In Friday’s hearing, Benjamin C. Mizer, an acting assistant attorney general, insisted that a victory by Texas would open the door to a flood of lawsuits by states against federal government actions.
Arguing for the states, Keller, the Texas solicitor general, told the appeals court that the president’s actions would provide tangible benefits to millions of undocumented immigrants, something that only Congress could do.
“It’s about whether the executive can rewrite the law,” Keller said. “If this passes muster, the executive will be able to rewrite all sorts of laws.”
In briefs to the court, Paxton argued that the president’s actions would cost the state of Texas money because workers who acquire legal status would qualify to get driver’s licenses under Texas law. That, Paxton says, gives the state standing to sue.
Officials from the 26 states also accused the president of failing to abide by requirements under the Administrative Procedure Act when changing federal rules. They are urging the court to block the executive actions until the legal challenge has run its course.
“The preliminary injunction preserves the status quo, which has existed for decades,” the lawyers for the states wrote in their latest brief.
If the appeals court lifts Hanen’s injunction, administration officials could quickly move to carry out the executive actions. That would mean that millions of undocumented immigrants could soon begin applying for protection under a program that would allow them to remain in the country legally but would not provide a path to citizenship.
Opponents could still seek to block the actions by appealing to the Supreme Court. And even if the program moves ahead, the underlying legal challenge could still continue in Texas. Briefs on the merits of the challenge are due in mid-May, and an initial hearing could come in June.