American Elephants


Fifth Circuit Court of Appeals Denies a Stay of the Inunction Against Obama’s Executive Amnesty by The Elephant's Child
May 26, 2015, 7:00 pm
Filed under: Politics | Tags: , ,

A federal appeals court has upheld a U.S. district court’s injunction preventing the Obama administration’s executive amnesty programs from moving forward.

U.S. District Court Judge Andrew Hannan placed a preliminary injunction on Obama’s executive amnesty programs in February, and denied a  second request from the Justice Department in March — ruling that the executive order must not be implemented until the lawsuit from the states is decided, keeping the programs from taking effect. Obama’s attempts at amnesty included the Deferred Action for Childhood Arrivals (DACA), Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Judge blocked the programs after a coalition of 26 states challenged the executive amnesty. The federal government did not help their case by preceding to grant work permits to illegals anyway, in spite of the injunction.

Justice Department lawyers sought a stay on the injunction fro the 5th Circuit Court of Appeals. The Court declined to issue a stay on a 2-1 vote because it concluded the government is unlikely to succeed on the merits of its appeal. This represents a significant setback for Obama’s executive amnesty plans.

Judge Smith noted that the:

affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would be otherwise available.’

Although prosecutorial discretion is broad, it is not ‘unfettered.’ Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.

Both the State of Texas and the Obama administration have signaled willingness to take the case to the Supreme Court. The

Texas is leading the 26 state coalition that is challenging the amnesty. Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan Mississippi, Montana, Nebraska, North Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin are members of the coalition.



A Federal District Court Judge Ruled Executive Amnesty Unconstitutional. by The Elephant's Child

A federal district court judge in Pennsylvania has ruled that portions of President Obama’s executive amnesty are unconstitutional. Judge Arthur Schwab said in his opinion that the presidential policy goes “beyond prosecutorial discretion” and into the realm of legislating. Because of this, Judge Schwab wrote, the action exceeds the scope of executive authority.

This is the first case to address Obama’s “decision to expand deferred action for some individuals unlawfully in the United States.” This particular case involved an individual who was deported and then returned to the United States unlawfully. The court, in considering how to sentence the defendant, sought direction on how the new policies  affected this particular defendant who was seeking the deferral of his deportation. It is not clear if the constitutional question  needed to be addressed in this case. It is unusual for a district court to reach this sort of constitutional  issue in this sort of case.

Jonathan Adler, who wrote this piece for the Washington Post, pointed out that in this case, no one was raising the question of constitutionality, so Judge Schwab’s opinion is more of an advisory, and leaves the defendant free to change his plea and reapply under the new rules. He declared the president’s action to be unlawful, but he did not set it aside.

Three other legal challenges to Obama’s executive actions are waiting trial dates, including the suit filed by 24 states. Adler is unsure if that case will satisfy the requirements of Article III standing to bring their claims. Yet even if the states don’t have standing, the legality of the president’s actions could be decided in Federal court.  Adler says “if Congress is unhappy with the degree of discretion the executive branch enjoys over immigration  policy, Congress needs to revise existing immigration laws to constrain executive authority.”




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