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U.S. Court of Appeals to Hear Argument to Stay Injunction Blocking Executive Action on Immigration

 

On April 17, a three judge panel of the United States Court of Appeals for the Fifth Circuit will hear arguments on a request by the Obama Administration to allow Executive Action for immigrants to go forward until the courts have an opportunity to rule on the legality of the program. A lawsuit filed by 26 states to halt the president's new immigration initiative announced on November 26, 2014 was filed in South Texas because that is one of the most conservative Federal courts in one of the most conservative Federal Circuits. The appeals panel reflects the politics of the Fifth Circuit, with conservatives filling two of the three slots on the panel.

A central issue in the Executive Action challenge of Texas v. United States is the ability of the states to even bring this lawsuit. The Supreme Court has ruled repeatedly that immigration law belongs exclusively to the Federal government. State-made immigration laws, including the infamous Arizona "Show me your papers law," have repeatedly been struck down by the courts. Similarly, state challenges to Federal immigration laws have rarely made it much past the courtroom door. 

In this case the state of Texas says that it has "standing", the ability to bring the lawsuit, because the issuance of employment authorization cards to undocumented immigrants will impose on the state the cost of issuing driver's licenses to those who pass the driving test.  The Texas judge said that the cost of licenses was enough harm to Texas for the case to proceed. That argument took a beating last week when another case on the same subject was decided by the Fifth Circuit. 

Crane v. Johnson was brought by the State of Mississippi to halt the implementation of the 2012 DACA program. In that case, Mississippi made a similar argument about the costs of legalization to the state of newly legalized DREAMers. The Fifth Circuit rejected that argument at the beginning of April, saying that the harm that Mississippi claimed it would suffer from DACA was "speculative." 

Legal scholars looking at the Crane v. Johnson decision say it is difficult to see how Mississippi could be found to lack "standing" but Texas be found to have "standing."  If the three-judge panel follows the precedents instead of political biases, it should life the injunction and allow President Obama's executive action programs to proceed. 

Pat Young is an attorney with the Central American Refugee Center and special professor of Immigration Law at Hofstra Law School.

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