By David Savage, Brian Bennett and Molly Hennessy-Fiske
A federal appeals court dealt a severe and possibly fatal blow Monday to President Barack Obama's executive actions to allow up to 5 million immigrants living illegally in the United States to stay and obtain work permits.
The decision by the 5th U.S. Circuit Court of Appeals may have come too late for the administration to appeal to the Supreme Court and win a reversal before Obama leaves office.
In a 2-1 decision, the appeals court sided with Texas and 25 other states that had sued to block Obama's programs, Deferred Action for Parents of Americans, or DAPA, and an extension of Deferred Action for Childhood Arrivals, or DACA.
The two judges ruled that Obama had "no statutory authority" to issue such sweeping orders on immigration because they forced a change in government regulations that did not go through full and proper procedures.
"At its core, this case is about the (administration's) decision to change the immigration classification of millions of illegal aliens on a class-wide basis," Judge Jerry Smith said, joined by Judge Jennifer Walker Elrod.
Immigration law "flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization," the court concluded.
The administration's lawyers fully expected to lose before the conservative appeals court, based in New Orleans. The two judges had already signaled they agreed with a federal judge in Texas who first blocked Obama's order.
But they took nearly five months to issue an opinion that ran to 135 pages, including the dissent.
Obama's lawyers can now rush an appeal petition to the high court. Texas would then have 30 days to respond.
Only then would the Supreme Court put the appeal on its list of cases to be considered. And unless the justices have voted by mid-January to hear an appeal, the case would not be argued and decided in the term that ends next summer.
Cases taken up in February or later will not be decided until early in 2017 _ after Obama has left the White House.
The dissenting member of the appeals panel, Judge Carolyn Dineen King, criticized her colleagues for the "extended delay that occurred in deciding this 'expedited' appeal."
"There is no justification for that delay," she wrote.
The Justice Department "is reviewing the opinion to determine how best to proceed," spokesman Patrick Rodenbush said in a statement.
The department "is committed to taking steps that will resolve the immigration litigation as quickly as possible in order ... to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children," he said.
Two programs are at issue in the case. There's an extension of Deferred Action for Childhood Arrivals, or DACA, created in 2012, which allowed more than a million young people brought into the United States illegally as children to apply for deportation deferrals and work permits. About 636,000 people have been approved to take advantage of the plan.
There's also Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, which was scheduled to start in May. It would grant three-year work permits and temporary protection from deportation to as many as 4.3 million adults who are parents of U.S. citizens or permanent residents and have lived in the country at least five years.
The president announced the executive order in November. He insisted he was not changing the law, but instead was granting a temporary suspension of deportation to individuals who have lived and worked in the United States for years.
But lawyers for Texas, joined by other states, sued and alleged the president's "executive amnesty" amounted to an unauthorized change in the law.
Texas Gov. Greg Abbott hailed Monday's decision as a "vindication for the rule of the law and the Constitution. The president's job is to enforce the immigration laws, not rewrite them."
"Today, the 5th Circuit asserted that the separation of powers remains the law of the land, and the president must follow the rule of law, just like everybody else," said Texas Attorney General Ken Paxton, whose office includes the state solicitor general who argued the case before the appeals court.
The other plaintiffs are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin.
Immigration advocates were disappointed but not surprised by the ruling and urged the administration to appeal immediately.
"We're talking about millions of immigrant families. They've been waiting and they live in fear every day of their lives of deportation," said Nora Preciado, staff attorney with the National Immigration Law Center in Los Angeles, which filed a brief in support of the federal government.
Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles, called the 5th Circuit's decision "a direct example of how politics bastardizes justice."
Salas continued in a statement: "Today's ruling is a slap in the face to the good people in America who have also been waiting for Congress and the courts to act with justice, humanity and common sense on the issue of immigration reform."
The appeals court ruling focused on two rather mundane legal issues _ whether Texas has standing to sue over the change in immigration policy and whether Obama's executive action was a change in government regulations that required a "notice and comment" from the public before it could take effect.
Texas authorities argued they had standing because the state could be forced to issue driver's licenses to hundreds of thousands of people.
Judge Smith said the cost of the extra driver's licenses was sufficient to get the state into court.
Lawmakers on both sides of the issue also weighed in.
"While today's ruling may be disappointing news to those still stuck in the shadows, it is by no means a surprise," said Sen. Robert Menendez, D-N.J., who has sought to reform immigration laws. "The path is finally clear for the Supreme Court to weigh in and confirm the legality of the expanded DACA and DAPA programs."
Republican lawmakers applauded the court's decision, saying it imposed appropriate limits on what actions a sitting president can take without a change to the immigration laws by Congress.
"President Obama's decision to ignore the limits placed on his power and act unilaterally to rewrite our nation's immigration laws is an affront to the Constitution," House Judiciary Committee Chairman Robert Goodlatte, R-Va., said in a statement.
"The president himself stated over 20 times that he does not have the authority to change immigration laws on his own yet he did so anyway," Goodlatte said.
Goodlatte and other Republican lawmakers signed an amicus brief submitted to the federal court in support of the states' lawsuit to block Obama's executive actions on immigration.
Jose Palacios, whose family immigrated from Mexico to Tampa, Fla., when he was a child, attended oral arguments earlier this year. He was disheartened but not surprised by the 5th Circuit's ruling.
"I didn't expect them to come through for our community," said Palacios, 23, who is protected by DACA. But he doesn't know what to tell his 46-year-old mother, who is dependent on her children for rides, unable to work and afraid to invest lest she be deported.
"Every time this comes up I have to tell her, 'Don't worry,' " he said. But nearly a year after Obama's programs were announced, "I really can't look at her in the eye and tell her not to worry, because I can't tell how quick they're going to take it up, with how slow it's been going."
(Savage and Bennett reported from Washington and Hennessy-Fiske from Houston. Staff writer Lisa Mascaro in Washington contributed to this report.)
(c)2015 Tribune Co.