Can Obama shield millions from deportation?


NEW ORLEANS: Lawyers for the Obama administration and a coalition of states squared off in federal court Friday (Saturday in Manila) over whether President Barack Obama has the authority to launch programs that would shield millions of people from deportation.

Texas and 25 other states have filed suit to halt the programs.

Lawyers for the administration argued that the federal government, not the states, sets immigration policy and that the president acted properly when creating programs that could affect up to five million people living in the country illegally.

“Texas believes it can haul the federal government into court and prevent it from making changes to immigration policy,” Benjamin C. Mizer, principal deputy assistant attorney general for the Justice Department’s Civil Division, told a panel of federal judges. “When the states operate in the realm of immigration policy, they are operating in a realm that is exclusively a federal one.”

Texas’ argument, Mizer said, “flips federalism and the supremacy clause on its head” while “it’s our position that we’re at the apex of executive authority.”

Texas Solicitor General Scott Keller later countered that one of the administration’s programs, known as DAPA, “would be one of the greatest changes in immigration policy in US history.” He added that “we are not trying to block federal statutes. Quite the contrary, we are trying to get the executive to abide by congressional statutes.”

Keller said that when states entered the union, they “surrendered their sovereign rights in the immigration context they did so with the understanding that Congress would regulate it.”

The arguments were heard by three judges selected at random from the 5th Circuit Court of Appeals, Jennifer Walker Elrod, Jerry E. Smith and Carolyn Dineen King — the first two conservatives appointed by Republican presidents, the third a moderate appointed by a Democrat. The 15 judges on the 5th Circuit, which meets in New Orleans, are responsible for cases from Louisiana, Mississippi and Texas.

The conflict over the president’s executive action on immigration began in December, when Texas officials filed suit against the programs before they could start, joined by 25 other states.

About a dozen states, including California and New York, filed a friend-of-the-court brief supporting Obama’s executive action. Los Angeles joined an alliance of cities and counties in voicing support as well.

In February, US District Judge Andrew S. Hanen in Texas, an outspoken conservative, issued a preliminary injunction preventing the administration from starting the programs.

In May, a three-judge panel of the 5th Circuit refused the administration’s request to lift Hanen’s stay after hearing oral arguments from both sides.

Obama critics of the programs say they would force state taxpayers to pick up the financial burden for millions of immigrants. Supporters counter that states should not interfere with federal immigration law.

The opposing sides met again for oral arguments at 9 a.m. Central time on Friday about the programs, known as Deferred Action for Parents of Americans, or DAPA, and an extension of Deferred Action for Childhood Arrivals, or DACA.

Obama’s plan would grant three years’ protection from deportation to up to five million people living in the US illegally. The largest part, DAPA, would offer three-year work permits to parents of citizens and other legal residents. It wouldn’t be open to recent arrivals or to people with serious criminal records.

The administration was represented by Mizer and Deputy Assistant US Attorney General Beth S. Brinkmann, former assistant to the solicitor general of the United States.

In addition to the states’ case Friday, the three-judge panel considered a related case involving three immigrant mothers from south Texas eligible for DAPA, represented by Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, or MALDEF.

Arguing on behalf of Texas and the other states were Keller and Texas Assistant Solicitor General Alex Potapov.

The judges were not expected to rule immediately.

The Justice Department had previously argued that the states lack legal standing to object, and officials have reason to be hopeful. In April, another three-judge panel of the 5th Circuit (King and two different conservative judges) unanimously ruled that immigration agents and Mississippi lacked legal standing to sue over DACA because of scant evidence that they would be harmed by the program.

But the three-judge panel that heard Friday’s arguments had also signaled they have doubts that Texas and the other states similarly lack standing to sue.

On June 29, the judges ordered both sides to file briefs addressing a new Supreme Court ruling upholding the Arizona state legislature’s right to sue over a referendum that allowed an independent commission to handle redistricting.


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