Once again, President Obama’s unlawful amnesty push has suffered a legal blow, this time from a higher court. Yesterday the Fifth Circuit Court of Appeals rejected the Obama administration’s request to lift a district-court injunction against its DACA and DAPA amnesty programs. The programs will now be kept frozen until a full hearing on the merits can be held. Because it will be well into campaign season by the time this takes place, the immigration issue should again play a prominent role in this coming cycle.
Crucially for immigration-enforcement advocates, the Fifth Circuit smacked down the president’s attorneys for arguing that Texas had no “legal standing” to challenge the president’s amnesty programs. Although obtaining standing to challenge the non-enforcement of our immigration laws has been a perennial problem for the public, Texas did a masterly job of structuring and arguing its case.
As an aside, interestingly, the court took the time to note that there was “confusion” surrounding the term “illegal alien.” Quoting a “leading legal lexicographer,” the court said that the term is more accurate than “undocumented immigrant” (the term that open-borders pushers have tried to inject into the lexicon for years), as illegal aliens’ “entry into the country” is certainly illegal under the law.
Similarly, the court spent nearly three pages dealing with the Supreme Court’s 1996 decision in Reno v. American-Arab Anti-Discrimination Committee, another case the Obama administration and open-borders pushers have been citing to claim that government decisions to allocate deferred-action benefits cannot be reviewed by federal courts. In rejecting this assertion, the Fifth Circuit closely tracked the arguments made in friend-of-the-court briefs by the Immigration Reform Law Institute (where I am a staff member). For example, the Court followed our argument that although the statutory provisions of the Immigration and Nationality Act discussed in Reno did circumscribe some authority of the courts to hear appeals of agency decisions to remove an inadmissible alien, it was only for claims brought by or on behalf of an alien, and only with respect to an agency decision to “commence proceedings, adjudicate cases, or execute removal orders.” Neither applies to a situation where claims are brought by injured states and where the actions in question, the doling out of amnesty and federal benefits, do not arise out of the three discrete decisions mentioned in Reno.
Obama’s attorneys had also argued that DAPA’s “incidental consequences,” such as driver’s-license costs, were not direct and predictable enough to constitute a proper injury under the law. However, liberal judges have recognized injuries far more attenuated in the recent past, at least when states have sued the government.
States, being entities that at the founding of the union made a compact with the federal government, are owed certain guarantees of sovereignty
In Massachusetts et al. v. EPA, a 2007 Supreme Court decision cited by Texas, a group of liberal-leaning states claimed that the EPA’s “refusal” to regulate greenhouse-gas emissions from cars would lead to global warming. This non-enforcement of vehicle emission standards, they argued, would create harm in the form of eroded shorelines from rising sea levels. In an opinion authored by Justice Stevens, a majority of the court agreed. To Obama’s attorneys, this was apparently a more “direct and predictable” injury than the millions in costs directly incurred by Texas in having to process tens of thousands of new driver’s licenses. Although Massachusetts may be an example of liberal Supreme Court justices’ shoehorning a desired outcome into existing court precedent, the fact that it has come back to haunt them will likely lead liberal judges farther down the line in this case to narrow its application.The Fifth Circuit judges also confirmed an important principle raised in the Massachusetts case. They recognized that states, being entities that at the founding of the union made a compact with the federal government, are owed certain guarantees of sovereignty. For this reason, the Massachusetts court said, states have a “special solicitude” when it comes to obtaining legal standing.
Obama’s government has done everything it can to stop states from passing laws that seek to regulate the number of illegal aliens flooding across their borders every year. Out of desperation, states have tried to simply pass laws that “mirror” federal immigration law, so that they can (at their own expense) do what the federal government should be doing. If that principle should be applied in the case of an administration that doesn’t regulate car emissions sufficiently, then it must be applied when an increasingly unhinged administration welcomes, recklessly or willingly, a soft invasion of its sovereign territory.
— Ian Smith is an attorney in Washington, D.C. He is on the staff of the Immigration Reform Law Institute.