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Obama’s Immigration Order Short-Circuited

The Fifth Circuit puts the president’s immigration plan on hold.

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AP Photo/Brownsville Herald, Brad Doherty

Yesterday the Fifth Circuit Court of Appeals, on a 2-1 vote, ruled against the implementation of one of Barack Obama’s signature immigration initiatives. The Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA, was an initiative Obama announced in 2014, after Congress failed to pass a comprehensive immigration reform bill. It built on the efforts Obama began in 2012, with the Deferred Action against Childhood Arrivals program (DACA), which directed the Department of Homeland Security to exercise discretion in enforcing immigration laws against unauthorized immigrants who arrived in the country as children. Under DACA, applicants who met the eligibility requirements—no criminal record, etc—would be protected from deportation, and could apply for a temporary work permit. In light of Congress’s ongoing intransigence, Obama explained in 2014, he would use executive action to expand the eligibility criteria for DACA; he was also directing Homeland Security to create a corollary program, DAPA, to provide a similar layer of protection for the parents of such children.

Obama’s announcement was heralded on the left in part because—as the Fifth Circuit ruling (PDF) makes clear—the potential impact of the president’s executive orders is huge. There are about 11.3 million unauthorized immigrants in the United States, about 1.2 million of whom qualified for legal protection from deportation and temporary work authorization under DACA’s original parameters; by the end of 2014, some 636,000 had applied. Obama’s new executive actions would potentially extend protection to many more. Some 4.3 million unauthorized immigrants, per the government’s calculations, would have been eligible for legal protections under DAPA alone.

To date, though, no one has received legal protection from deportation or a temporary work permit through DAPA. In December 2014, a month after Obama announced his new plans, a coalition of states, led by Texas, sued to block implementation of the executive actions. In February, a district judge in Brownsville ruled that the federal government could not proceed to implement the program until the courts had weighed in on its constitutionality. The Fifth Circuit, siding with Texas and the other 25 states that had joined the lawsuit, ruled that it is not.

Yesterday’s ruling will probably not be the final word on the subject; the Department of Justice has confirmed that it will appeal the Fifth Circuit’s ruling to the Supreme Court. But in the interim, I hope that advocates for immigration reform stop to consider what they’re fighting for.

In announcing the new program, Obama anticipated the criticism he was likely to receive:“To those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill.” He has continuously cast his decision to proceed by executive action as the lesser of two evils. In the face of a moral crisis, Congress has refused to act; that being the case, the ends justified the means.

Personally, I think that’s bogus. It’s true that in 2013, the Senate passed a comprehensive immigration reform bill only to see it fizzle in the House, where a number of Republicans were loudly refusing to consider any reform bill that included a pathway to citizenship, and Democrats may be correct in saying that these objections were only a fig leaf for Republicans who secretly didn’t want any immigration reform. But we’ll never know, because Democrats, in turn, insisted that it was unthinkable to consider an immigration reform bill that did not include a pathway to citizenship. Obama’s criticism of Congress, in 2014, effectively hinged on the premise that the legislature is the executive’s stenographer, as opposed to an entirely separate branch of the federal government, with different rights and powers. People of good faith can disagree, I suppose, over whether the president overstepped his authority here, but the constitutional question doesn’t hinge on his moral goals.

And those who share the president’s moral commitment to immigration reform would do well to read the Fifth Circuit’s ruling. In defending its plans, the administration argued that DAPA should be viewed  as an exercise in prosecutorial discretion: “‘lawful presence’ is not a status and is not something that the agency can legally enforce; the agency can alter or revoke it at any time.” The Fifth Circuit rejected that argument on the basis that there’s no rule that exercises in prosecutorial discretion are exempt from judicial review. But still, that’s the administration’s own argument, and it’s a telling one. Even if the Supreme Court rules that the Obama administration may proceed to implement the president’s immigration program, DAPA remains a program rather than a law. It may have been the best Obama could manage under the circumstances, but it’s nonetheless a program that the next president can just as easily undo. With millions of lives hanging in the balance, advocates for immigration reform should hold out for more.

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  • Rules of Blazon

    This bogus challenge does nothing but highlight the rank politicization of the Republican appointees to the federal bench.

    The Republican governors who filed this lawsuit chose the district with Brownsville in it so that they could draw Bush-appointee Andrew Hanen, who would all but certainly rule against anything Obama did. And they lucked out.

    Plus, with the appeal to the Fifth Circuit, they were all but guaranteed to get a favorable panel. Sure enough, they get Jerry Smith- whose blatant partisanship rivals that of this forum’s troll- and he writes this opinion in order to add his finger to those of the Republican governors sticking in Obama’s eye.

    We should thank Justice King for the dissent. Hopefully, Kennedy finds it persuasive enough to correctly overturn Smith’s panel opinion. Better still, maybe a Hillary appointee or two gets the final say.

  • WUSRPH

    As I have said before, I suspect a large percentage of the GOPers in the Congress secretly hope that major portions of the president’s program are eventually implemented. That would allow action on at least one of the major problems—how to handle those several million illegal aliens who have established roots in this country—to be resolved without the Republicans having to cast a single vote on a single controversial issue while allowing them to keep attacking the president. Having and eating their cake at the same time.

    • bs…pure unadulterated bs. This showed a lack of judgement by Prez Obama, you dems own it.

  • So maybe on Vets day we are still ruled by law….barely.

  • WUSRPH

    I am certain that George W. repealed the “rule of law” in one of those numerous “signing statements” he issued in which he declared himself to be the equivalent, if not more than, the Supreme Court taking upon himself the power to interpret all laws and how to enforce them.

    “Mr. Bush … broke all records, using signing statements to challenge about 1,200 sections of bills over his eight years in office, about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.”

    But that was different. After all he was a Republican and he wasn’t Black.

    • Erica Grieder

      To be fair Abbott and Cruz had a problem with Bush’s executive overreach too, and took him to court over it accordingly in Medellin v Texas.

      • Erica you speak facts they simply do not register with WASSUP.
        Coffee same place next Tuesday?

        • Indiana Pearl

          She’s just not that into you, Booksie.

      • WUSRPH

        The fact that they recognized how extreme the Bush Administration’s view of Presidential power had gotten is to their credit.

  • Rules of Blazon

    Bush did even more damage to the rule of law by giving lifetime appointments to partisan Republican hacks like Andrew Hanen.

    • WUSRPH

      It would take 25 Andrew Hanens to come close to the damage to justice done by one Edith Jones—RR’s appointee to the 5th Circuit.

      • Rules of Blazon

        She is truly awful. Possibly the worst in the country.

        • Especially when she told Sparks to Shut Up……now that was funny.

        • John Johnson

          Who? Hillary? FBI expanding their probe, I understand. Anyone supporting her is a total dimwit. Her lies are documented yet you still slobber over her.

      • Indiana Pearl

        Donald “Archie Bunker” Trump told Edith to “stifle herself” last night. All grist for the war-against-women mill . . .

  • Apparently some dems hate it when a strong conservative woman is their boss tells them to shut up when they out of line.

    “Ironically enough, some found Judge Sparks’s civility-seeking order to be… rude. Chief Judge Edith Jones (5th Cir.) issued an email reprimand to Judge Sparks, condemning his “caustic, demeaning, and gratuitous” order as “cast[ing] disrespect on the judiciary.” Some observers in turn thought it rude of Chief Judge Jones to call out Judge Sparks in writing, so publicly — she cc’d all of the other Western District of Texas judges on her email — when she could have just made a private phone call.”

    http://abovethelaw.com/2011/09/benchslap-of-the-day-chief-judge-jones-tells-judge-dennis-to-shut-up/

    Do democrats hate strong women? I thinking its a mommy thing.

    • WUSRPH

      You mean we only like “weak little things” like Eleanor Roosevelt and Hillary Clinton and Speaker Pelosi?

      • Strong women do not adopt the European’s cavalier attitude toward infidelity like Rose Kennedy, Eleanor Roosevelt and Hillary Clinton.
        Hillary said she would stand by her man and bake cookies and give Bill cover as he sexually harassed an intern in the WH. Now Pelosi is a different story did you see the black eye she gave Harry?

  • Dems a very serious about enforcing their interpretation of free speech. Yanno where they can say or do anything and you’d better shut up or they will have you banned.

    “Click was seen at the end of the video asking for assistance and for “muscle” to remove MU junior Mark Schierbecker, who filmed the interaction and uploaded his footage to YouTube. Basler was seen pushing and berating Tai in the video.”

    http://www.columbiamissourian.com/news/higher_education/mu-journalism-faculty-voting-to-remove-click-s-courtesy-appointment/article_6e2cedaa-87c7-11e5-ae63-87e5cacea580.html

    Can I get some muscle over here…..let me translate “if you post something we don’t like we’ll report you to the editor.”

    Its a new world dems everything you say and do is on camera spin won’t save you.

  • Indiana Pearl

    Off to SCOTUS . . .

  • Today is veterans day and I want to thank all that have served.

    Here’s some little known facts about who vets are.

    “As of 2014, the VA estimates there were 22 million military veterans in the U.S. population. If you add their figures on veterans to the active personnel numbers mentioned above, 7.3 percent of all living Americans have served in the military at some point in their lives.”

    http://fivethirtyeight.com/datalab/what-percentage-of-americans-have-served-in-the-military/

  • squidpuppy

    Even if the SCOTUS rules DAPA can go ahead. Obama is correct, “pass a bill” is still the only sure way to not leave “millions of lives hanging in the balance.” Such a lot of fuss over temporary deferrals.

    • John Johnson

      “Temporary deferrals”? There is no such thing. Half, if not more, will never show up for a hearing. Temporary visas for students, and visitors, expire and many just decide to not go back home. Our government has no real mechanism or desire to chase them down and export them. Most of the women and children are here to stay. You know it; I know it.

      • WUSRPH

        You are right.. Once they get work permits and their roots are recognized they are here to stay. Barring the creation of a police state with “can I see your papers?” becoming the greeting every Hispanic and Asian/Indian gets several times a day and night-time raids on their homes—that is reality. What needs to be done is to insure that those who arrive in the future are desired.

        • What is wrong with showing papers? Ever been an executor or personal representative of an estate, court orders death certificates mean nothing to mind numbed bureaucrats. I’m asked weekly to prove who I am.

          • WUSRPH

            https://fcit.usf.edu/holocaust/GALL31R/26538.htm

            Trump was asked on Wednesday during “Morning Joe” how he would deport 11m people, and he said he would have a “deportation force” that would do it humanely; he repeated the statement to NBC’s Katy Tur.

          • Jews were rounded and executed because they were there illegally? You ignore facts and our history and compare America to Nazis?

            “Influential politicians, including Sen. Lyndon B. Johnson (D) of Texas and Sen. Pat McCarran (D) of Nevada, favored open borders, and were dead set against strong border enforcement, Brownell said. But General Swing’s close connections to the president shielded him – and the Border Patrol – from meddling by powerful political and corporate interests.”

            “Then on June 17, 1954, what was called “Operation Wetback” began. Because political resistance was lower in California and Arizona, the roundup of aliens began there. Some 750 agents swept northward through agricultural areas with a goal of 1,000 apprehensions a day. By the end of July, over 50,000 aliens were caught in the two states. Another 488,000, fearing arrest, had fled the country.”

            http://www.csmonitor.com/2006/0706/p09s01-coop.html

            Once the crackdown illegals left on their own. this is commonly known as enforcing our laws.
            Notice the politicians against the act? LBJ and friends.

          • WUSRPH

            No….I only illustrate what will be necessary to round up more than 11 million people.

          • When Az and OK cut of tax payer funded entitlement to illegals they left those two states voluntary.
            Million are asking the executive branch to do their job and enforce our laws, not pick and choose which ones to enforce.

          • WUSRPH

            “Signing orders” pick and choose…George W. Bush……As Erica pointed out, even Abbott and CRUZ sued because of his “overreaching” and his idea that he could decide what was the law. But that was different. After all, he was a GOPer and a not Black.

        • John Johnson

          We agree.

        • Indiana Pearl

          Both Hispanics are south Asians are desired by Bidness. Sad news for poorly educated white folks . . .

          Watch the documentary, “A Day Without a Mexican.”

  • squidpuppy

    http://www.politico.com/story/2013/06/immigration-bill-2013-senate-passes-093530

    BTW here are the 14 Republican senators who voted for the legislation:

    Lamar Alexander of Tennessee;

    Kelly Ayotte of New Hampshire;

    Jeff Chiesa of New Jersey;

    Susan Collins of Maine;

    Bob Corker of Tennessee;

    Jeff Flake of Arizona;

    Lindsey Graham of South Carolina;

    Orrin Hatch of Utah;

    Dean Heller of Nevada;

    John Hoeven of North Dakota

    Mark Kirk of Illinois;

    John McCain of Arizona;

    Lisa Murkowski of Alaska;

    Marco Rubio of Florida.

    EG. I don’t see Cruz on here.

    • Welcome SP long time no see. Good point Sen Cruz didn’t support Sen Rubio and his gang of 8 friends.

      • WUSRPH

        Make that 13 friends….14 GOP voted for it….

    • Indiana Pearl

      Cruz wasn’t elected until 2012.

      • squidpuppy

        This politico article is 6/2013. Cruz took office 1/2013.

        • Don’t feed the troll, pearl doesn’t deal in facts but does have a good grasp on the gin.

      • squidpuppy

        Cruz was in office. This bill passed the Senate but did not pass in the house.

        • Indiana Pearl

          Not in 2008.

  • WUSRPH

    I assume you saw where the little Canadian declared that, had he been president in 2008, he–along with our own Congressman Lloyd Doggett—would have let the big banks fail.

    One can only hope that Cruz was, as usual, spouting off to appease his less-than-informed base. Let’s just consider what would probably have happened if the Congress and President Bush had let the banks fail in October of 2008 when our entire financial system was on the verge of collapse.

    If you can remember back that far—as most do not—you would find situation where the majority of our nation’s and the worlds’ major banks and investment firms were on the verge of collapse as their debts overwhelmed their value of their assists. Their collapse would have, among just a few minor things:

    ·— Totally frozen the personal and business accounts of several hundred million depositors including those with deposits in the hundreds of branches of those banks AND in the many smaller banks whose accounts are linked and interlocked with those of the major “too big to fail” banks. (In turn this would have had a similar effect on deposits in those accounts by probably millions of us who think we are “safe” because we put our funds into credit unions—without realizing that most of those unions are interlinked with the banks so that the collapse of the banks would have also blocked us from accessing those accounts aw well.)

    — Totally frozen the accounts of millions of more individuals, businesses, governmental entities, retirement funds and every other imaginable kind of investor in their stock, bond, financial paper and other investments—depriving them of most of their access and making it
    impossible for them to meet their own obligations (including retirement
    payments) and destroying the value of millions who had invested in those firms and the banks.

    — Make virtually all checks not processed and paid before the collapse to pay bills, salaries, advances, rewards uncashable making what cash you had in your wallet all the cash you would have for some time to come. In turn, leaving hundreds of millions of individuals, businesses, institutions and government entitles with no cash and no access to cash to pay bills, employees, customers, mortgages or even to purchase the most basic food and necessities.

    — While by the sheer magnitude of the collapse simultaneously overwhelming the ability of the FDIC and the Federal Reserve to halt the collapse by implementing their guarantees—systems that were not designed or ever intended to be able to handle more than a few collapses at a time and certainly not a system-wide collapse as could have occurred in this
    case. Their failure would have forced the Federal Government to implement a “Bank Holiday” as FDR did in 1932–closing all banks and financial institutions until emergency steps could be taken. ¨

    All of which would have certainly produced mass panic among the public, businesses and institutions resulting in closings, layoffs and sheer panic over how will we survive.

    Of course, it is easy to say: “This would not have happened. It would not have been allowed….Something would have been done….”

    In fact, something was done….The U.S. Congress ACTED…and that is why it did not happen.

    One of the few things that Bush did right.

    • We don’t know that as it didn’t happen and it is only speculation and fear mongering by the left.

      • WUSRPH

        It did not happen BECAUSE President Bush and The Congress stopped it from happening. Maybe with your guy we can try it again and see……But I bet you’ve got quite a horde of gold in your shelter to ride it out. Of course, why any one thinks gold is going to help them when they cannot eat it and there is nothing they can buy with it is beyond me.

        Funny you claim it is fear mongering by the left, when the LEFT–represented by people like Bernie and Doggett—were against doing it. They seemed to believe, like you and the Tea Party and Cruz, that nothing bad would happen. We are all fortune that they did not get their way.

        • once again pure speculation on your part.
          See thats how we differ, you speculate I deal in facts, you’re a 47%er I’m a 7%er.
          But that is ok because I’m tolerant.

        • Indiana Pearl

          “Cigarettes and vodka miniatures” will be trade goods when “The Road” comes to be. Forget the gold coins.

  • WUSRPH

    The Dodd-Frank Act made some reforms to help stave off another such catastrophe but not enough….although it was all that could be gotten thru Congress with the GOP opposition. In fact, the GOP is still trying to kill it.
    I hope you are right that any president would have acted like Bush did…but Cruz, who claims to be a man of his word, says he would not.