How court battle over Obama immigration action could be road map for reform

The hopes of up to some 5 million undocumented immigrants hung on arguments heard in front of the Fifth Circuit Court of Appeals in New Orleans on Friday, as President Obama’s controversial go-it-alone approach to immigration reform faced a critical legal hurdle.

Obama announced in November a tag-along plan to his 2012 deferred deportation plan for the children of undocumented immigrants, saying the government would allow undocumented parents of lawful residents an opportunity to apply to have deportation deferred.

But 26 states filed a lawsuit in Brownsville, Texas, where US Federal District Court Judge Andrew Hanen on Feb. 18 stopped the executive action in its tracks, saying it unfairly burdened states.

Government lawyers argued before a three-judge panel of the Fifth Circuit on Friday that the appeals court needs to lift that injunction because immigration policy is a federal right that cannot be usurped by states. Perhaps in an acknowledgment of the importance of the case, the Fifth Circuit took the rare step of allowing oral arguments.

To be sure, the stakes are high for both the families of undocumented immigrants and politicians, underscored by large vigils and rallies around the federal courthouse in New Orleans Friday. While many Latino voters believe that Republicans have stood in the way of comprehensive immigration reform, it is also true President Obama has, despite efforts to be more compassionate toward undocumented immigrants, overseen record numbers of deportations.

But perhaps more significantly for an immigration reform movement stuck in the mud, testimony in New Orleans focused less on populist passions and more on the practical aspects of the president’s actions. Such a deeper look at the policy’s real-world impacts, border policy experts say, could force politicians to address the kind of substantive questions that could help push comprehensive immigration reform forward.

“Economists would tell you that immigrants, including undocumented immigrants, are a net benefit to the US economy, but there are distributional issues, including the fact that states are obligated to give undocumented immigrant children a K through 12 education, and that is costly,” says Kevin Johnson, the dean of the University of California, Davis, law school, and an immigration policy expert. “Because of those legitimate concerns [about the president’s executive action], one benefit of litigation like this is getting the relevant parties to the table to talk about these issues in order to work out a compromise on immigration reform.”

At the heart of the complaint by Texas and 25 other states is that the president’s executive action isn’t only overreach by the executive branch, but a political ruse. The administration insists that the deferred deportation, which would offer special immigration status for up to 5 million people, is only temporary and that Congress has to finalize immigration policy. But those accepted into the programs are eligible to receive work permits, driver’s licenses and, most importantly, a Social Security card. States argue that trying to reel back such benefits would be difficult, if not impossible, meaning that Obama’s measures are, in fact, permanent.

“The concern is that nothing is going to be temporary, even though the administration says it’s temporary, and that’s one of the things that’s motivating the [opposing] states,” says Professor Johnson at UC-Davis.

Meanwhile, 13 states, including California and Virginia, have filed briefs supporting the Obama administration’s executive action, arguing that bringing undocumented immigrants into the fold of American life would not only be compassionate, but would have a net positive effect on state budgets.

Department of Justice attorneys argued that the injunction harms “the interests of the public and of third parties who will be deprived of significant law enforcement and humanitarian benefits of prompt implementation” of Obama’s action.

Lawyers for the 26 states, for their part, argue that what they see as backdoor amnesty threatens already marginalized American workers.

“[B]asically, this is a benefits program for people who are not actually supposed to be here,” Texas Attorney General Ken Paxton told Fox News.

The appeal of a US district court judge ruling in front of the Fifth Circuit, one of the country’s most conservative appeals courts, likely amounts to an uphill battle for the administration. The three judges who heard the case were appointed by President Reagan, President George W. Bush, and Obama.

At the same time, the same trio on April 7 allowed Obama’s 2012 executive action to stand, suggesting to experts that the court may in the end be open to the administration’s argument that states can’t be “interlopers” into disagreements between Congress and the president.

Meanwhile, for millions of undocumented immigrants who may be eligible for deferred action under the new plan, the wait for legitimacy will go on.

Last week, Judge Hanen reaffirmed his preliminary injunction in an order released last week saying that the Obama administration had “abdicated enforcement” of key portions of federal immigration law.

The one upshot for immigrants in the country illegally: Hanen did not stop the administration's policy of focusing deportation proceedings on those who have committed crimes, meaning that actual deportation risk for immigrants with deep connections to the US remains low. In fact, the administration has halved the number of deportations in the past five months.