President Obama’s lawyers received a chilly reception from the 5th Circuit Court of Appeals as they tried to lift Judge Andrew Hanen’s injunction stopping Obama’s executive action on illegal immigration.
26 states sued the Administration over Obama’s order and Judge Hanen temporarily blocked implementation back in February.
A three judge panel heard oral arguments over the injunction on Friday and observers believe the panel is inclined to rule against Obama.
By the time the court session wrapped up, it appeared likely the appeals judges will rule, 2-1, against the administration’s request for a stay of a district court injunction, which would most likely leave the Supreme Court to decide whether the program can move ahead while lawsuits play out in the states. If the administration can’t get its new moves underway sometime this year it may have difficulty getting them done before Obama leaves office.
As you may know, the Obama Administration misled Judge Hanen regarding the implementation of his illegal executive amnesty. In this hearing, one of the judge’s went after Obama’s own words about the “discretion” which he was allegedly handing to immigration law prosecutors.
Judge Jennifer Elrod, a Republican appointee, suggested that Obama’s own statements about the program undermined the federal government’s claims that immigration officials retain case-by-case discretion. She referenced a televised town hall meeting in Miami in February when Obama said that there would be consequences for government employees who ignored his directives to grant deferred action to those who are eligible.
“When he says if you file this you will get relief, when he gives affirmative statements that you are entitled to the relief … are those just general, what we would say in other contexts, puffery?” Elrod asked, adding, “I mean no disrespect to the president by saying that.”
Of course, Obama’s judge on the panel went out of his way to support the man who appointed him to office.
However, Judge Stephen Higginson, an Obama appointee, cautioned that the courts could create chaos in the government if they conclude that any time agency officials closely follow an internal directive it has to be made into a formal regulation that’s subject to notice-and-public-comment.
“If what we’re saying here is ‘we’ve looked at the data and the government officers are largely adhering to their own criteria, therefore the guidelines are invalid, really, it’s a secret rule,’ that’s a very perverse legal incentive,” Higginson warned. “That’s a dangerous rule for us to try to write.”
Most of the support for the the administration’s stance came from Higginson, an Obama appointee, who repeatedly questioned Hanen’s rationale.
Judge Higginson did make one argument which could be awkward for Obama and his amnesty lobby.
But on about a half dozen occasions Higginson also suggested that one reason to view the program as a form of prosecutorial discretion was because it enticed illegal immigrants to come out of the shadows and left open the possibility they could be tracked down and deported later.
The third judge on the panel is more difficult to read.
Judge Jerry Smith, who has drawn headlines for clashing with Justice Department lawyers in other cases, did no bombthrowing Friday. In fact, he took a back seat at the argument, leaving Elrod and Higginson to do most of the verbal sparring with lawyers for both sides.
In his few comments, Smith did seem inclined against the administration, however. He pointed repeatedly to a 2007 Supreme Court ruling in which the justices held, 5-4, that states had standing to sue the EPA over its decision not to regulate greenhouse gases. That decision “may be key” to the outcome of the immigration litigation, the Reagan appointee said.
Illegal immigration activists were out in force at the hearing attempting to intimidate judges into ruling in their favor
The arguments at the 5th Circuit’s headquarters drew a crowd of demonstrators who back Obama’s executive actions. At times, their chants and shouts could be heard in the courtroom where the arguments took place, a recording of the session shows.
A decision from the 5th Circuit could come at any time. It’s expected the decision will be appealed to the Supreme Court no matter what the outcome.
