The Obama Administration announced Nov. 10 that it will seek U.S. Supreme Court review of a ruling blocking President Barack Obama’s executive actions on immigration. But timing is crucial, an immigration law expert warns.
“The government has a strong case in this appeal and nothing to lose,” says Stephen H. Legomsky, professor of law at Washington University in St. Louis.
Legomsky is former chief counsel of the U.S. Citizenship and Immigration Services, the Department of Homeland Security agency that would be charged with implementing Deferred Action for Parents of Americans (DAPA), and more recently senior counsel to the secretary on immigration issues.
“The problem is timing,” he says. “The long delay by the Court of Appeals means it is now a close call whether there will be enough time for the Supreme Court to issue a decision in this term, which lasts until next June. If the case gets held over to the next term, the clock will run out on the current administration.”
DAPA is a crucial part of President Obama’s legacy, Legomsky says. But on Nov. 9, by a vote of 2-1, the U.S. Court of Appeals for the Fifth Circuit in New Orleans affirmed an order that bars the Obama Administration from implementing it.
“Under this policy, announced a year ago, the administration hopes to focus its limited immigration enforcement resources mainly on dangerous criminal offenders, recent arrivals, and border security, rather than on those who are the parents of U.S. citizens or other lawful permanent residents.
“Those parents would receive something called ‘deferred action,’ a policy that has been used for decades to provide a temporary reprieve from deportation, and temporary work permits, for individuals whose removals are a low priority,” he says. “As a result of the Nov. 9 court order, DAPA will remain on hold.”
The outcome was not a surprise, Legomsky says. “The judge who handed down the original opinion and both of the judges who voted to affirm it are among the most conservative judges in the country, and they had signaled their feelings about DAPA long ago.”
3 ‘Striking Things’ About the Opinion:
- The Court of Appeals decision went even further than the district court had gone. It said the government may not implement the immigration program at all, even if it were to use the notice-and-comment procedure, a lengthy formal process.
- The court’s dominant theme was that DAPA is illegal because it results in the beneficiaries being temporarily “lawfully present” for certain specific purposes—a result the court claims Congress has not authorized. “The problem is that Congress has expressly authorized exactly that,” Legomsky says. “The statute specifically allows the Secretary of Homeland Security to authorize periods of stay that will avoid unlawful presence. The judges were fully aware of that provision; the government and several amicus briefs all relied on it, and the dissent pointed it out as well. Like Judge (Andrew) Hanen, they simply chose to ignore it.”
- “The dissent by Judge (Carolyn Dineen) King contained a paragraph that I have never before seen in a judicial opinion,” Legomsky says. “She publicly criticized her two colleagues on the panel for what she rightly called their ‘extended delay’ of a case that a previous panel of the court had agreed to expedite. They could have copied almost verbatim their own opinion addressing the same issues at an earlier phase of the case. There had already been mounting speculation that these two judges were purposely trying to run out the clock on the Obama Administration. This delay will only lend further fuel to that speculation.”