- The Washington Times - Monday, November 9, 2015

President Obama’s effort to grant up to 5 million illegal immigrants work permits and amnesty from deportation suffered a major blow late Monday when a federal appeals court ruled it was likely illegal, in yet another move by the courts to set limits on this White House’s efforts to stretch presidential powers.

The 2-1 decision by the 5th U.S. Circuit Court of Appeals, sitting in New Orleans, instantly forces the issue to the fore of the presidential campaigns, where all three top Democratic candidates had insisted Mr. Obama’s actions were not only legal, but vowed to go beyond them and try to expand the amnesty to still more illegal immigrants. Republican candidates, meanwhile, had vowed to undo the moves.

The decision is a huge win for Texas and 25 other states who had sued a year ago to stop the president after he declared he was done waiting for Congress and announced he was acting to “change the law” on his own.

Writing for the majority, Judge Jerry E. Smith said that statement by Mr. Obama weighed heavily against him, since only Congress has the power to rewrite the Immigration and Nationality Act.

“The INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization,” Judge Smith wrote.

The ruling does not mean those illegal immigrants will be deported — indeed, the judges affirmed that the administration has a lot of leeway to decide who does get kicked out on a case-by-case basis. But the decision means that while leaving them alone, the Homeland Security secretary cannot proactively go ahead and grant them work permits, Social Security numbers and a prospective grant of non-deportation for three years into the future.


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The ruling also does not alter Mr. Obama’s 2012 policy granting a similar deportation amnesty to so-called Dreamers, or young adult illegal immigrants who came to the U.S. as children. Texas did not challenge that policy.

But the decision does halt the 2014 expansion Mr. Obama announced, which would have lifted the age limit on the 2012 policy so it applied to all Dreamers, and would have extended the grant of amnesty to illegal immigrant parents of U.S. citizens and legal permanent resident children. Estimates have placed the number of people who would have qualified at up to 5 million.

Mr. Obama had repeatedly insisted he was within the law, and pointed to smaller grants of “deferred action” taken by previous presidents.

The majority of the court, however, said this waiver went far beyond that scope, with Mr. Obama attempting to convert major classifications of illegal status.

Mr. Obama had argued his move, known officially as “Deferred Action for Parental Arrivals,” or DAPA, was not a major new policy, but rather a setting of priorities. He argued that Congress doesn’t give him enough money to deport all illegal immigrants, so he is within his rights to use discretion about whom to deport — and then to grant limited benefits to others who might eventually have a claim to legal status under existing laws.

Judge Carolyn Dineen King, who dissented, agreed with the president’s reasoning.

“Denying DHS’s ability to grant deferred action on a ‘class-wide basis’ … as the majority does, severely constrains the agency,” she wrote.

She also agreed with Mr. Obama that the courts had no business even getting involved in the case, saying that the president alone has discretion to make deportation decisions and judges are not allowed to second-guess that.

The judges heard oral arguments in the case in July, calling it an expedited appeal because of the seriousness of the matter. That made the three months it took to issue the ruling all the more striking — and Judge King chided her colleagues for taking so long.

“There is no justification for that delay,” she said.

Courts have not been kind to Mr. Obama, a former constitutional law scholar at the University of Chicago. His move to expand recess appointment powers in 2012 was swatted down by a unanimous Supreme Court, while several environmental moves have also been blocked.

And a federal court in Washington, D.C., has ruled the House of Representatives has standing to sue over the president’s moves to try to spend money on Obamacare that Congress specifically withheld.

The immigration ruling joins those rulings as yet another instance where conservatives have turned to the courts to referee a dispute over Mr. Obama’s claims of executive power.

Immigrant-advocacy groups had been anxiously watching the case, and were devastated by the ruling.

“This is a huge setback,” said Voto Latino President Maria Teresa Kumar. “There is a shortage of justice as families live in constant fear of being torn apart from their loved ones and uprooted from their communities.”

She said she was “confident” the Supreme Court will overturn the ruling, if the case gets there.

Mr. Obama announced the amnesty as part of a series of steps last Nov. 20 designed to work around Congress, where House Republicans had balked at passing a legalization bill.

The president said that if they wouldn’t cooperate with him, he was going to take unilateral action to streamline legal immigration and to halt deportations for as many as 9 million of the estimated 11 million illegal immigrants in the country. Those steps all remain in place.

But he also wanted to go beyond that and grant some tentative legal status and benefits to about half of those illegal immigrants — chiefly by giving them work permits, which allows them to come out of the shadows, hold jobs and pay taxes above board.

Granting work permits also entitled the illegal immigrants to driver’s licenses in every state in the county, and to Social Security numbers — which meant they were even able to start collecting tax credits. In addition, some states granted them in-state tuition for public colleges.

But the money states would have to spend on issuing driver’s licenses proved to be the plan’s downfall. Texas argued that meant it would lose money under the plan, which meant it had standing to sue.

Once the judges decided that, they turned to whether Mr. Obama followed the law in making the changes. The majority concluded that he because he never sought public review and comment, which is standard for major changes of policy made by agencies, he broke the Administrative Procedures Act.

Immigrant-rights advocates demanded the Obama administration fight to the Supreme Court, but also said they’ll force the issue into the political realm as well.

Ben Monterroso, executive director of Mi Familia Vota, called on Hispanics and other voters to punish Republicans at the ballot box over the lawsuit, saying “anti-immigrant conservative politicians … are to blame.”

“We cannot control the courts, but we will have a say in political outcomes. It is now up to us — Latino voters and groups like ours that are working every day to grow our vote in the 2016 national election — to elect candidates who respect our communities and will commit to working on our issues and treating us fairly,” he said.

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