Score another one for immigration paralysis. President Obama’s policies seeking to protect millions of unauthorized immigrants from deportation suffered another setback on Tuesday.
A panel of the United States Court of Appeals for the Fifth Circuit rejected the administration’s emergency request to lift the temporary hold on the programs imposed in February by a district judge in Texas, Andrew Hanen.
“The Constitution wins,” Gov. Greg Abbott of Texas said on Twitter.
The Constitution didn’t win. What won was a concocted partisan narrative, pushed hard by Republicans like Mr. Abbott, that Mr. Obama is a lawless tyrant, an American Caesar, for resetting his deportation priorities in a way the Republicans don’t like.
This was the month that Mr. Obama wanted to expand an earlier program called DACA, Deferred Action for Childhood Arrivals, which gives people brought here illegally as children protection from deportation and permission to work. He also wanted to create a similar program for unauthorized-immigrant parents — Deferred Action for Parents of Citizens and Legal Residents, or DAPA.
The idea was to temporarily shield these young immigrants and their families from the threat of deportation so that the Department of Homeland Security could focus its resources on serious criminal threats. Recipients of DACA and DAPA would be able to live openly and work legally, presumably until broader immigration reform could pass in Congress.
But 26 states filed suit, saying the administration’s action would cause them all manner of hypothetical injury, including the cost of processing driver’s licenses for all those immigrants. The two Republican appointees on the three-judge appeals panel swallowed this party line and agreed that states had the standing to sue.
Astute analysis from Dara Lind of Vox is here, and from David Leopold here.
Jessica Bansal, litigation director of the National Day Laborer Organizing Network, focused on the troubling idea that the states can sue the executive branch for doing its job.
“The panel’s decision on standing threatens to give states an unprecedented level of influence in federal immigration policy,” she said in an email.
Ms. Bansal said the decision, if allowed, would set a dangerous precedent, “letting states tie up in court — potentially for years, quintessentially federal decisions” like granting parole or temporary protected status to immigrants fleeing natural disasters or political violence in their home countries.
The ruling is here. The only arguments in it worth buying are in the dissent, from the only non-Republican-appointed judge on the panel, Stephen Higginson.
Judge Higginson stated plainly that he thought the states and courts should butt out. “I would hold that the underlying issue presented to us — the order in which non-citizens without documentation must be removed from the United States — must be decided, presently is being decided, and always has been decided, by the federal political branches.”
Judge Higginson reminded his colleagues that Mr. Obama had hardly been abdicating his immigration duties, as the states allege – on the contrary, he has been deporting more people than any other president, ever. And he noted that the DACA expansion and DACA are based on well-established principles of prosecutorial discretion.
“On this record,” the judge wrote, “I would say D.H.S. is adhering to law, not derogating from it.”
Immigrants, advocacy organizations and Democratic politicians responded to Tuesday’s ruling with anger, frustration, resolve and determination to hang in as the case drags on, possibly to the Supreme Court, possibly beyond the end of Mr. Obama’s presidency.
It has been a long wait for them, for the millions who have been promised relief, waiting for the country to get its head on straight, waiting for the anti-immigrant fever to break.