The Legal Dispute Over Obama’s Executive Order on Immigration, Explained

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Texas is currently at the center of a complex back-and-forth between the federal government and states. Advocates on either side of a legal debate surrounding President Obama’s executive actions on immigration presented oral arguments to a federal appeals court in New Orleans Friday, and many are pessimistic about the order’s survival, meaning that five million illegal immigrants could face deportation. But let’s not get too ahead of ourselves. The sequence of events and legalese not only has millions of undocumented immigrants in limbo, but it also has us scratching our heads a bit. Let’s break it down:

How did this all start?

Last November, President Obama issued an executive order that would allow undocumented parents of U.S. citizens who have been in the country for more than five years the chance to gain temporary legal status (via three-year work permits and deportation deferrals). The order would also expand the 2012 Deferred Action for Childhood Arrivals Act to include undocumented immigrants over thirty years of age who arrived as children to apply for deportation deferral. Previously, only those under thirty qualified. In short, the action allowed two major groups of undocumented immigrants to avoid the threat of deportation.

As it turns out, issuing a blanket order to give temporary legal status to millions of people isn’t that simple. Shortly after Obama issued the executive action, Texas and 25 other states sued his administration, arguing that it was an abuse of the president’s executive privilege.

To make everything even more complicated, five top immigration officials (including Homeland Security Secretary Jeh Johnson) issued two thousand work permits after Hanen’s injunction went into effect. Hanen issued an order for these officials to appear at a hearing in August and explain why they should not be held in contempt for issuing the permits.

“This Court has expressed its willingness to believe that these actions were accidental and not done purposefully to violate this Court’s order. Nevertheless, it is shocked and surprised at the cavalier attitude the Government has taken with regard to its ‘efforts’ to rectify this situation,” the order said.

Well, was it an abuse of executive action?

Even legal experts haven’t really come to a consensus on that. But federal district court Judge Andrew Hanen issued an injunction in February, siding with the states that sued. The Obama administration appealed.

The administration’s legal argument rests on the idea of prosecutorial discretion—the idea in U.S. immigration law that officials can use their own judgment to decide where to intervene. Because most can agree that it would not only be impractical but potentially inhumane to try to deport all of the 11 million undocumented immigrants in the country, giving these particular groups a chance to avoid deportation will ease the burden on immigration enforcement, allowing officials to prioritize immigrants who do pose a threat to public safety.

Opponents of the executive action are arguing that Obama is simply rewriting the law, something that they feel should be left to the legislators. 

How do Texans feel about Obama’s executive action?

Our own governor has a reputation for crying “federal overreach.” Governor Greg Abbott uses the fact that he sued the Obama administration nearly 27 times during his time as state attorney general as a bragging point: “I go into the office, I sue the federal government and I go home.”

Meanwhile, Texas labor unions and immigration advocates are rallying in favor of Obama’s order and have condemned Hanen’s initial injunction: “U.S. District Court Judge Andrew Hanen’s Order of Temporary Injunction is a disgraceful action taken by the court,” Las Americas Immigrant Advocacy Center said in a response.

What now?

The Fifth U.S. Circuit Court of Appeals heard oral arguments Friday before a panel of three judges, who will make a ruling on an undetermined date. The panel includes two conservatives and a moderate, but the two Republicans have previously said that the administration’s lawyers are “unlikely to succeed on the merits of the appeal.”

(Photograph by AP Photo / Brad Doherty)

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  • Srben

    Undocumented = illegal. Eroding our border is a violation of federal law, our national sovereignty, and a danger to our lawful citizens.