On Wednesday, we discussed [6] a ruling by the 5th U.S. Circuit Court of Appeals in New Orleans that will serve to further delay the implementation of an executive order from President Obama designed to shield nonviolent immigrants from deportation. Republican governors from 26 states oppose the order and have accused the President of overreaching in his efforts to bypass what he views as an ineffectual Congress. Texas Attorney General Ken Paxton went so far as to accuse the administration of “brazen lawlessness.”
For its part, The White House says it is by no means out of bounds for the President to ask Homeland Security to exercise an appropriate level of discretion prior to deporting immigrants with US family connections.
Irrespective of who is right, the court ruling threatens to push a final decision on the subject well into next year, an eventuality which would further politicize the issue. Some commentators suggested that the President may well ask the Supreme Court to allow for the order’s immediate implementation. Now, the DoJ says The White House will not seek to use the high court as an end-around.
The NY Times [7] has the story:
President Obama’s overhaul of the nation’s immigration system, which he announced in a prime-time speech to the nation last November, may remain under a cloud of legal uncertainty until months before he leaves office in 2017, legal experts and administration officials said Wednesday.
Officials from the Justice Department said in a statement that they would not ask the Supreme Court for permission to carry out the president’s immigration programs — which seek to provide work permits and deportation protection to millions of undocumented immigrants — while a fight over presidential authority plays out in the lower courts…
But administration officials on Wednesday said the decision not to ask the Supreme Court to allow the program to move forward immediately reflects a practical reality: Even if the justices had given the green light to begin implementing the program, the continuing legal fight would probably have scared away most of the undocumented immigrants who could apply for it.
In a statement, officials from the Justice Department said they disagreed with a decision by the United States Court of Appeals for the Fifth Circuit that continues to block the president’s immigration actions. But they said the government will fight on the merits of the program, rather than push for permission to carry it out immediately.
What that means is a protracted battle in the lower courts which so far have agreed that enacting a sweeping overhaul of the nation’s immigration policies without the approval of Congress crosses the line into executive overreach.
Now, the administration will attempt to make a stronger case for the program, an avenue they say is preferable to forcing the issue. But this route also jeopardizes the the program’s implementation because regardless of whether the President wins on appeal, the case may eventually end up before the Supreme Court anyway, setting up the difficult proposition of attempting to create a complex bureaucratic infrastructure with a Lame Duck commander in chief. Here’s The Times again:
Administration officials had hoped to begin inviting millions of immigrants to sign up for the president’s new immigration program as early as this month. But that effort has been shelved since February, when a Texas District Court judge ordered a halt, calling it an executive overreach and agreeing that officials had violated administrative procedures.
On Tuesday, the appeals court refused to overturn that order, saying that it believed Mr. Obama’s lawyers would ultimately lose in their efforts to defend the president’s actions.
Rather than continue to fight the judge’s initial order, administration officials said Wednesday that government lawyers would wait and make what they believe will be a stronger legal argument on the merits of the president’s immigration program.
Those oral arguments before the Fifth Circuit are scheduled to begin during the week of July 6, and administration officials expressed confidence that they would eventually prevail.
If the president were to win at the appeals court later this summer, legal experts said it was possible that Mr. Obama could order the program to begin later this year.
But administration officials said it was very likely that whoever lost at the appeals court would ask the Supreme Court to consider the full merits of the president’s actions...
If Mr. Obama were to emerge victorious in the court in the summer of 2016, the timing would pose several problems for his immigration programs.
With only a few months to go before he leaves office, Mr. Obama’s administration would face the daunting task of quickly setting up a new bureaucracy that could process millions of applications from undocumented immigrants.
The implication here is that ultimately, Obama-style immigration reform could be dead in the water because by the time the court battles finally end, it's entirely possible that the Republican presidential candidate will end up touting a promise to repeal the order in the run-up to the election.
As The Times concludes, the more attention the issue receives, the more fearful undocumented immigrants will be about coming forward ("stepping out of the shadows", as the President put it), thus rendering the entire effort essentially meaningless.
The futility of American politics is on full display.
Finally, here is a visual representation of the above...
