The Corner

Very Big News Out of New Orleans on Immigration

In response to Rehabilitation

As Patrick Brennan notes, a three-judge panel of the Fifth Circuit Court of Appeals just handed the Obama administration a huge defeat. It denied the government’s request for an emergency stay of a preliminary injunction blocking implementation of President Obama’s immigration amnesty program. This is not a decision on the merits of the lawsuit filed against the administration by the 26 states. But it certainly does not bode well for the administration’s case since in today’s 2-1 decision, the Fifth Circuit concluded that “the government is unlikely to succeed on the merits of its appeal of the injunction.”

The panel also denied the government’s request to narrow the nationwide scope of the injunction so that it only applied to Texas and the other states in the lawsuit. The court concluded that “partial implementation of [the president’s program] would undermine the constitutional imperative of ‘a uniform Rule of Naturalization’” contained in Article I of the U.S. Constitution, as well as “Congress’s instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly’” that is outlined in the Immigration Reform and Control Act of 1986.

The 68-page opinion was written by Jerry Smith, a Reagan appointee, who was joined by Jennifer Elrod, a George W. Bush appointee.  The dissenting judge, Stephen Higginson, an Obama appointee, argued that the underlying immigration issue is one that can only be decided “by the federal political branches” and is not an appropriate issue for “intervention and judicial fiat” by the courts. 

Next up in the Fifth Circuit will be the main event: oral arguments over the substantive issue at stake, which is the constitutional and statutory merit of the injunction issued against President Obama’s plan to, in essence, legalize up to 5 million illegal aliens.

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