In November 2014, the President took a critical step in providing greatly needed immigration relief for the undocumented population. Specifically, the President issued an executive order that would allow the undocumented foreign national parents of U.S. citizens and permanent residents (green card holders) to live in the U.S. without the threat of deportation, and to apply for work permits.
Unfortunately, as so often happens now, bad politics got in the way of this good policy when a group of 26 states challenged the executive action in a federal court. Specifically, the Attorney General of Texas filed an injunction in the court and asked that the judge prevent the executive action from taking effect. The judge granted the injunction in May 2015, and the White House appealed this decision. Yesterday, the judges in the 5th U.S. Circuit Court of Appeals in New Orleans voted two to one to uphold the injunction.
The Arguments in the Case
The group of states that challenged the President’s executive action did so because they believed that he was acting outside his presidential powers by implementing a sweeping policy that could potentially suspend deportation proceedings for hundreds of thousands of people.
Conversely, the White House argued that the court had no power to reviewed the President’s actions because the policy would amount to prosecutorial discretion, a practice that has been well-recognized as being within the purview of the President’s enforcement powers.
The Court’s Decision
The crux of the Court’s majority opinion is that the President’s executive action seeks to go beyond merely exercising prosecutorial discretion, and instead it would also let a large number of the affected foreign nationals become lawfully present in the country. The judges reasoned that such an outcome goes so far against the current immigration laws that the executive action cannot be implemented without Congressional approval – i.e., a new bill.
There was one dissenting judge on the panel, and she disagreed with the majority on whether the President’s action would truly result in such sweeping consequences. Judge Carolyn King wrote in her dissenting opinion that she feels the court erred in not requiring the states to prove that the President would not approve prosecutorial discretion on a case-by-case basis, which is the method the White House argued it would utilize.
What’s Next for the Case
Almost immediately after the decision was announced, immigration rights advocates begin calling on the White House to appeal the federal court’s decision to the Supreme Court. The President has not yet issued a statement on whether the administration will do so, but a decision must be made quickly in order to ensure the highest court in the land makes a favorable ruling by June 2016.
Hopefully, the President will decide to appeal the case to the Supreme Court, and those judges will correct the error made by the federal court. As always, we are still waiting for comprehensive immigration reform that would fix these problems. Continue to check our blog for more information on the latest developments affecting green card holders and others.
Additional Blog Posts
Democrats Propose New Immigration Reform, ImmigRantings, July 20, 2011
Congress Asks DHS to Grant Temporary Protected Status to Filipinos, ImmigRantings, December 5, 2013