Although the Obama administration won big victories at the Supreme Court this term on health care and same-sex marriage, it faces an uphill battle in federal court as it pushes to implement a third major priority: immigration reform.
Not only did a federal judge temporarily block the President’s controversial immigration actions from going forward last winter, but now the judge is threatening to hold key administration officials in contempt of court. Additionally, on Friday, in parallel legal proceedings, a potentially hostile federal appeals court is set to hear arguments on the programs.
Eight months after the President unveiled his immigration reforms meant to allow millions of undocumented immigrants to come forward for deportation relief and work authorization, he finds himself in a less than ideal legal position. Indeed, challenges to his immigration actions — brought by Texas and 25 other states — could continue up to the last days of his presidency.
In February, Judge Andrew S. Hanen, of the U.S. District Court for the Southern District of Texas in Brownsville, brought the initiatives to a sudden halt when he ruled that the administration had likely failed to comply with the procedures for the way federal agencies can establish regulations. When the government revealed in May that it had inadvertently given work authorization to some 2,000 individuals after the order went into effect, Hanen was furious.
He issued an order earlier this week saying that while he had been willing to believe the actions were accidental, he was “shocked and surprised” at the “cavalier attitude” the government had taken to rectify the situation. He threatened to haul Department of Homeland Security Secretary Jeh Johnson and other top immigration officials to court next month to ask them why they should not be held in contempt of court.
Hanen called the government’s conduct “completely unprofessional,” but added that if the government addressed the issue by the end of July, he would reconsider the August hearing.
“To be clear,” he added, “this court expects the government to be in full compliance with this court’s injunction. “
Meanwhile, on another legal front, government lawyers will travel to New Orleans on Friday in hopes of convincing a three-judge panel of the Fifth Circuit Court of Appeals to reverse the preliminary injunction.
At issue is the implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents and the expansion of the 2012 Deferred Action for Childhood Arrivals, a program that permits teenagers and young adults who were born outside of the United States, but raised in the country, to apply for protection and deportation and for employment authorizations.
The problem for the administration is that the three-judge panel is composed of two Republican-appointed judges, Jerry E. Smith and Jennifer Walker Elrod, who refused to put a hold on Hanen’s order last May. The third judge, Carolyn Dineen King, was nominated to the bench by President Jimmy Carter.
In court papers, the administration argues that the preliminary injunction “irreparably harms” the public interest by “disrupting” Johnson’s “comprehensive effort to most effectively marshal the agency’s limited resources to protect national security, public safety, and border security, while deferring low-priority removals of aliens that would impose undue humanitarian costs.”
But Texas Attorney General Ken Paxton argues that the President “unlawfully rewrote immigration law to unilaterally impose one of the largest changes in immigration policy in our nation’s history.”
The appeals court could take weeks or months to issue an opinion. Advocates for immigration reform are watching the clock, because if the issue does make its way to the Supreme Court, papers would likely have to be filed by mid-winter for the justices to hear the issue next term.
“We are acutely aware that every day that goes by that there’s an enormous human toll on our community” said Karen Tumlin, managing attorney for the National Immigration Law Center. “The executive actions by the President were not only the legally right thing to do, they are the morally right thing to do.”