The Department of Justice (DOJ) filed an emergency appeal Monday of the injunction by a Texas federal judge that halted President Barack Obama’s deferred action programs for illegal immigrants.
The judge had ordered all federal agencies to suspend their implementation of the president’s Nov. 20 memorandum, which would shield up to 5 million illegal immigrants from deportation and grant them work permits, arguing that the policy would cause irreparable harm if found illegal.
The DOJ argued likewise in its appeal that the injunction would cause irreparable harm, this time in the area of national security.
It argued the deferred action programs discourage immigration officers from detaining illegal immigrants who aren’t high priority, such as felons or terrorists.
This puts more resources toward national security, the White House argues, an effort stymied by the injunction.
The deferred action programs are “an integral part of the Department [of Homeland Security’s] comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the homeland in the face of limited resources,” the appeal states.
“Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if defendants ultimately prevail on that appeal.”
The DOJ also contested the ruling’s scope, arguing that the plaintiffs did not have standing for the injunction to apply beyond Texas to all 50 states, although this isn’t the first time a district court judge has issued a nationwide injunction. A California judge had ordered the U.S. military to freeze its “don’t ask, don’t tell” policy for the U.S. military back in 2010.
The DOJ said that it would file its emergency appeal with the 5th District Court of Appeals in three days absent a ruling from the district court, which is unlikely to overturn its own injunction. It also filed a regular appeal of the ruling.
The state of Texas has contested the appeal, asking for a full seven days to respond, pointing out that the DOJ would not have waited a full week to file the appeal in the case of a genuine emergency.
“If defendants had any compelling claim of a looming, irreversible harm from temporary injunctive relief, they would have featured it previously. They had ample time to do so: Plaintiffs requested a preliminary injunction on December 4,” the letter states. “At the very least, plaintiffs should be allowed to respond within the same seven days that defendants enjoyed to prepare their motion after the preliminary injunction was issued.”
Texas filed its rebuttal of the appeal in less than an hour and a half after the appeal was filed, having been well prepared as the administration had announced its intent to appeal on Friday.
“The president’s stay request should be denied. A stay is typically granted to have the status quo maintained,” Texas Gov. Greg Abbott said in a statement Friday.
“Here the status quo is the immigration law passed by Congress, not the executive action by the president that rewrites immigration law. The president’s lawless trampling of the Constitution thwarts the status quo.”
The DOJ is not expected to win its emergency appeal in the 5th District Court, long considered a conservative stronghold, where 6 out of the 15 justices are appointees of former President George W. Bush.