Saturday, July 11, 2015
Fifth Circuit Not Buying Obama Administration Defense of Expanded Executive Immigration Action
Politico and virtually all news accounts report that President Barack Obama appears likely to lose again in the legal fight over his executive actions on immigration.
Two of the three appeals court judges who heard oral arguments yesterday on the Obama administration’s immigration programs were deeply skeptical about the legal justification for the expanded deferred action program announced in November 2014. The chilly reception from the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit Court of Appeals on whether Obama had the legal authority to take such action seems to indicate that a lower court decision blocking the new programs will remain in place.
The Obama administration has argued that the executive actions were a standard use of prosecutorial discretion. Judge Jerry Smith, one of the judges who previously refused the Obama administration's request to stay the injunction barring implementation of the new deferred action program entered by the district court, disputed that contention. Smith said that “Just seems to me that … it really is a lot more than prosecutorial discretion.”
Judge Jennifer Walker Elrod, like Smith a Republican appointee who previously supported denial of the stay motion, repeatedly grilled administration lawyers. She questioned whether the Department of Homeland Security had “boundless” authority to grant work permits, and whether so-called “deferred action” could give work authorization to a broad class of people unlawfully in the United States.
Benjamin Mizer, the acting assistant attorney general for the Justice Department’s Civil Division, argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound.
According to reports, Judge Carolyn King, an appointee of President Carter, leveled challenging questions to the Scott Keller, the Texas Solicitor General.