The Fifth District of the U. S. Court of Appeals handles cases originating in Mississippi, Louisiana, and Texas. As you might guess, it’s considered a very conservative court. As the editors of the Wall Street Journal note, the Fifth District dealt the Obama Administration a setback on Monday:
Maybe the separation of powers isn’t a dead letter after all. The U.S. Constitution’s core protection against tyranny got a reprieve late Monday when an appeals court upheld a federal judge’s injunction against President Obama’s unilateral immigration order.
A three-judge panel of the Fifth Circuit Court of Appeals voted 2 to 1 that a legal challenge by 26 states has a high probability of success and thus the regulation should not be enforced until the case is decided on the merits. On Tuesday the Administration said it will appeal to the Supreme Court, which means this could be a landmark ruling before Mr. Obama leaves office.
The careful, 70-page opinion by Judge Jerry Smith eviscerates the Administration’s unprecedented claims of executive authority. The Homeland Security Department says it has executive discretion to decide whom to deport, but its detailed marching orders to immigration agents provide for almost no discretion in handling individual cases.
I have no opinion on the merits of the case and have no thoughts on how the case will fare at the hands of the Supreme Court. The Obama Administration has lost a remarkable number of unanimous Supreme Court decisions. The zeal with which the Administration has pursued its political and ideological goals has frequently outstripped its legal ability so I don’t think that I would bet on the Administration’s prevailing here unless you gave me pretty good odds.
I do find it remarkable that the notoriously open borders-supporting WSJ editors are taking the position they are. From it I conjecture that either
- The editors of the WSJ hate Obama more than they love open borders
- They love the division of powers and the rule of law more than they do open borders or
- They haven’t noticed the discrepancy between the position they’re taking in this editorial and the one they’ve taken in previous editorials.
What I’ve wondered is why the Administration didn’t continue to fight this in court, while opening a notice and comment proceeding as a precautionary matter. From a legal standpoint, I don’t see the problem, so long as the rulemaking states that it is being initiated with an abundance of caution to protect innocent young people during what is anticipated to be a vigorous and lengthy court battle.
I found that an immigrant rights group agrees:
“The Administration’s refusal to issue DAPA/DACA as a DHS “regulation†has negative legal and practical consequences for millions of potential applicants. If President Obama published DAPA/DACA as a formal regulation: (1) the legal basis for the current injunction blocking DAPA/expanded DACA would be wiped out without risking lengthy appeals, (2) DAPA/DACA would become a “substantive right†instead of a “privilege†giving applicants and recipients stronger enforceable legal rights, and (3) a formal regulation will make it more difficult for a future Administration, without advance notice or the public’s opportunity to comment, to terminate the DAPA/DACA programs (and to place DAPA/DACA recipients in deportation proceedings). The President should show his support for DAPA/DACA and issue these programs in a formal regulation.”
President Obama is Missing the Boat and Leaving Millions of Immigrants
Stranded
I think this reasoning is sound in its thinking, particularly as to points (2) and (3), though perhaps optimistic too optimistic as to (1). The Fifth Circuit decision showed how close the issue of whether notice and comment rulemaking was required and whether the policy would nonetheless be invalid as inconsistent with the statute the policy purports to interpret.
It could be that the Administration secretly believes that this policy will fail without statutory support, but that it helps build Obama’s legacy, and creates a political issue for the next election. Secondary thinking might be that there is still more than a 0% chance of winning in the courts, and defending the executive branch’s ability to direct immigration policy for future presidents is worthwhile.
That’s how I’ve got it figured. If you assume purely political and Obama-centered objectives, I don’t think you can go far wrong.
Choice a. Besides, the Obama directives are really more about protecting those here than open borders per se. The WSJ doesn’t want them to stay and become citizens. Then businesses will have to pay them full wages.
Steve