NEW ORLEANS — The Obama administration and a coalition of 26 states squared off in a federal appeals court Friday over the White House's controversial deportation deferment policy.
Although the hearing was ostensibly focused on whether the 5th Circuit Court of Appeals should lift a federal district court judge's hold placed on the program, both sides spent much of the two-plus hours arguing over the broader legality of the administration's actions.
The hearing ended without a ruling and without any timeline on when it would come.
Arguing for the administration, Ben Mizer, the acting head of the Department of Justice's Civil Division insisted that Obama's November executive action is simply based on existing law allowing the administration to make broad decisions on what people to seek to deport and for whom to defer action.
Mizer argued that if the states are right and they have the ability to challenge the programt, they "can challenge an individual decision, like an asylum decision" — which could have broad, unintended consequences.
But Scott Keller, the Texas solicitor general, argued for the states that the basic underpinnings of the program are illegal, insisting the order "makes unlawful conduct lawful …. [I]t is an affirmative change to immigration status and it has legal implications."
The three judge panel of Judges Jerry Smith, Jennifer Elrod, and Steve Higginson gave few hints on how they would rule on the motion to stay the trial court's decision putting the executive action on hold. However, Elrod seemed skeptical of much of Mizer's argument, repeatedly peppering the DOJ lawyer with questions about the scope of the orders, whether it is appropriate to provide undocumented immigrants with work permits and potentially federal benefits like Social Security, and other issues.
Likewise, Higginson seemed deeply skeptical of the states' arguments, as well as the district court's rulings on the case. At one point, Higginson mused that the current controversy is a direct result of a conflict between the White House and Congress, noting "Congress could change this like that" — snapping his fingers. "That's political jockeying the courts should stay out of," he said.
Presiding Judge Jerry Smith was the most inscrutable of the three. Never engaging in serious back and forth with the attorneys, Smith only asked a handful of questions about the application of Massachusetts v. EPA, a climate change-related case that relates to the preliminary question of whether the states have the ability to sue the administration over the program.
Following the arguments, Smith noted, "[W]e don't generally have oral arguments on motions such as this, but it was extremely helpful," before adjourning the court without issuing a decision.
In another case, the 5th Circuit ruled last week that states did not have standing to challenge DACA, Obama's previous executive action protecting immigrants who arrived as children. This ruling was based partly on the fact that Mississippi, which brought the earlier lawsuit, only considered the fiscal harm that deferred action would cause without analyzing its potential benefits.
Some legal observers say this is a good sign for the administration, because it suggests that the 5th Circuit will apply the same standard to the Texas suit, making it more likely to lift the injunction. "I find it difficult to see how the plaintiffs are going to overcome that standard in light of what the very same circuit court said a week ago," said Shoba Sivaprasad Wadhia, a professor at Penn State Law who studies prosecutorial discretion and has filed briefs in favor of the administration in the Texas case.
Even as the new deferred action programs remain in limbo, immigrant advocacy groups around the country are preparing for the programs to be implemented — assuming a victory for the administration. The New York Immigrant Coalition, for example, announced a vast training program today aimed at preparing volunteers from social services organizations to help immigrants sign up for the programs, modeled after the community navigators who helped people sign up for healthcare in the early days of the Affordable Care Act.