Limbo for millions of immigrants as Obama action stalls: What next?

A federal appeals court is weighing whether to lift an injunction against an Obama executive action designed to give 'legal presence' to up to half of the nation’s 11 million undocumented immigrants.

The ability of a US President to use government discretion to achieve major real-world outcomes became on Friday the heart of a wide-ranging legal discussion at the 5th Circuit Court of Appeals in New Orleans, which is weighing whether to lift an injunction against an Obama executive action designed to give “legal presence” to up to half of the nation’s 11 million undocumented immigrants.

Skepticism from two conservative judges at the court on Friday suggested that the three-judge panel may leave a Feb. 18 injunction in place until the courts can untangle the legalities stemming from President Obama’s executive action announcement last November.

The injunction came from Federal District Court Judge Andrew Hanen in Brownsville, Texas, who halted the plan after finding the administration didn’t give Americans proper notice and the chance to comment on such a major policy shift.

Given the legal roadblock, the big question outside the downtown New Orleans courtroom is whether Obama’s directives will turn out to have meaningful impact before he leaves office in just under two years.

 But the testimony also addressed important legal and philosophical questions that may clarify the issue for those who are conflicted about the net costs and benefits of bringing undocumented America into the light.

At the very least, the hard-driving testimony and quizzical judicial cross examination in New Orleans on Friday seemed to confirm that Obama’s actions have spurred the country to confront the human and economic burden of undocumented immigration in a new and serious way.

“The stakes are high and tensions are high, there’s a lot of emotion, and everybody is watching,” says Kevin Johnson, dean of the law school at the University of California, Davis.

In 2012, Obama bucked Congress’ refusal to craft meaningful immigration reform by ordering sweeping changes to how Immigration and Customs Enforcement (ICE) applies prosecutorial discretion to deportation cases, giving undocumented immigrants who came to the US as children a chance at legal standing.

In November, Obama announced an expansion of that plan, allowing a three-year deportation deferral for undocumented immigrants who don’t have a criminal record, have lived in the US for at least five years, and have an American-born child.

So far, the US has issued Social Security cards to over half a million “dreamers” under the 2012 Deferred Action for Childhood Arrivals (DACA), and just over 100,000 others have applied for but have not received deferral under the new program, Deferred Action for Parents of Americans (DAPA).

In response to DAPA, 26 states, led by Texas, sued in Judge Hanen’s court for relief, saying Obama’s actions would dramatically increase the burden on states.

 “DAPA would be one of the largest changes in immigration policy in our nation’s history,” Texas Solicitor General Scott Keller told the court. “Any injury that the executive could show would not outweigh the irreversible harm of changing the status quo by allowing DAPA to go into effect.”

For their part, government lawyers argue that states can’t be interlopers in an argument between Congress and the President on matters of immigration, which they say is solely a federal task. (In a separate amicus brief, 13 states, including California and Virginia, voiced support for the Obama initiatives.)

The enormity of the benefits offered by the President has belied questions around the limits of Executive Branch power. Judges on Friday treaded onto that ground.

For example, Judge Jennifer Elrod, a George W. Bush appointee, used Obama's own words to illustrate a problem with the program. She questioned Department of Justice contentions that immigration agents would retain case-by-case discretion when looking at deferral applications.

Judge Elrod thought that jarred with Obama’s statement at a February town hall in Miami that agents would face consequences if they buck his orders to give deferrals to everyone who is eligible.

 “When [the President] gives affirmative statements that you are entitled to relief … is that puffery?” Judge Elrod wondered, adding she meant no disrespect to Obama with her question.

But Judge Stephen Higginson, an Obama appointee, noted that undocumented immigrants are the ones taking the main risk by coming forward, which proves that case-by-case prosecutorial discretion will continue.

The deferred action program, in effect, asks undocumented immigrants to trust the very agency that seeks to deport them as they are “telling us where they are,” argued Judge Higginson.  “It is scary for them. It is precarious to identify … We’re finding the fugitives.”

In the end, the legal question in front of the 5th Circuit may come down to an issue of expediency, especially since it would be difficult to rescind benefits from deferred deportees if a court later finds Obama’s actions unconstitutional. The Obama administration has continued to take deferral applications, but is refraining from extending benefits.

Given skepticism from judges on Friday, the Obama administration’s best chance at lifting the injunction may come from the US Supreme Court, which can still be asked to make an emergency intervention in order to allow the program to go forward while the legalities are untangled.

But for now, millions of undocumented immigrants remain in limbo between the courts and Obama’s promises.

“We’re big about the status quo,” said Judge Elrod. “It appears the Supreme Court may be big about [preserving] the status quo in the middle of cases.”