WASHINGTON — A ruling this week by a federal appeals court signals bad news for Republican-led lawsuits seeking to stop President Barack Obama’s executive actions on immigration, immigration law experts say.
“I think this is very good news for the government,” Jonathan Weinberg, an expert on immigration law at Wayne State University, told TPM.
A three-judge panel on the 5th Circuit Court of Appeals unanimously dismissed a lawsuit by Mississippi against Obama’s 2012 program to protect young people brought to the U.S. illegally from the threat of deportation. Two Republican appointees and one Democratic appointee said the state lacks “standing” to sue because it did not prove it was injured by the program.
Three immigration law experts say the ruling sets a precedent that could undermine a separate major challenge to Obama’s more recent and more controversial program to help up to 5 million more undocumented immigrants, most of them parents of American citizens. That program is being challenged by Texas and 25 other states on similar grounds; it was halted by a federal trial court in Texas and the Obama administration is appealing the decision to the same appeals court, the 5th Circuit, that decided the Mississippi case this week.
The two programs — the 2012 Deferred Action For Childhood Arrivals (DACA) and the 2014 Deferred Action for Parents of Americans (DAPA) — rest on the same legal foundation of prosecutorial discretion by the executive branch to prioritize deportation resources and temporarily let some undocumented immigrants stay and work in the country.
“I think DACA and DAPA will really turn on the same decision. I can’t see any meaningful distinction other than DAPA involves more people then DACA,” said Stephen Legomsky, a professor of immigration law at Washington University.
The standing claims by Mississippi could carry over to the Texas case. But there’s a difference that may give the court a way to distinguish them. Mississippi argued it is financially harmed by illegal immigration generally; the 5th Circuit rejected that claim because it failed to trace the injury to DACA. Texas, meanwhile, argues specifically that DAPA harms the state financially by forcing it to process drivers licenses for beneficiaries who obtain a work permit.
In theory the 5th Circuit could conclude that the more concrete standing claim by Texas is valid. But that would be difficult, experts say, because of studies that say the additional tax revenues brought by DAPA beneficiaries would exceed the costs to Texas.
There are two other ways the appeals court ruling may be bad news for the Texas-led lawsuit, the experts said.
The first, said Legomsky, is that the court “emphasized that the standing requirements are especially stringent when plaintiffs are claiming that the federal government has acted unconstitutionally, which is exactly what they’re claiming in the Texas case.”
The second is that the 5th Circuit decision contradicted part of the same rationale used by U.S. District Court Judge Andrew S. Hanen to rule against the Obama administration in the separate DAPA case. While Hanen chided the government for failing to establish a public notice-and-comment period required for binding rulemaking in the DAPA challenge, the appeals court instead suggested that the DACA program is non-binding and based on discretion, which doesn’t include that requirement.
“It’s very hard to distinguish DACA from DAPA, so if the 5th Circuit is saying obviously DACA gives discretion, that’s a big boost for the government on the merits on DAPA,” Weinberg said.
One potential silver lining for the Republican challengers is a brief concurring opinion by Judge Priscilla Owen, who agreed with the ruling fully but argued that it’s “not always necessary to present concrete evidence that an injury has occurred or will, beyond question, occur.” She added that “Mississippi has not, however, made any arguments of this nature.”
The bad news for the White House is that Hanen this week rejected the administration’s request to lift his injunction on the 2014 immigration actions, meaning they cannot move forward unless a higher court says so.
Texas Attorney General Ken Paxton (R) appeared encouraged by the district judge’s decision in a statement Wednesday, lambasting the “President’s lawless amnesty plan” as reflective of “a pattern of disrespect for the rule of law in America.”
Paxton’s office didn’t address TPM’s specific query about the potential impacts of the 5th Circuit’s DACA ruling on its lawsuit against the program’s expansion and DAPA.
Though the case may ultimately be settled by the Supreme Court, the 5th Circuit Court of Appeals, which features 10 Republican-appointed and 5 Democratic-appointed active judges, could be an important signifier as to how strong a chance the challengers have for success.
Madeline Zavodny, a professor at Agnes Scott College and adjunct scholar at the American Enterprise Institute, was unsure how the Texas case would turn out at the 5th Circuit. “I have no idea which way it will go,” she said in an email. “It’s a relatively conservative court, so the states would seem to have a chance.”
Greg Siskind, a Memphis-based immigration lawyer who agrees with the government’s position, noted that the “the scope of DACA didn’t seem to register in the Mississippi case,” suggesting that it means “the court tipped its hand as to the programs being similar.”