November 10, 2015

"A divided panel of the U.S. Court of Appeals for the Fifth Circuit has affirmed a federal district court’s nationwide injunction against the Obama administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents..."

Jonathan Adler reports.
In an extensive, 70-page ruling, Judge Jerry Smith (joined by Judge Jennifer Elrod) concluded that the states had standing to challenge DAPA and were likely to succeed on both their procedural and substantive claims. Among other things, Judge Smith concluded that DAPA is not authorized under existing law, nor is it justified by historical practice.
Adler excerpts from the opinion. Here's an excerpt of the excerpt:
DAPA undoubtedly implicates “question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.”... Even with “special deference” to the Secretary, the INA 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....

[T]he President explicitly stated that “it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’” At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes....

29 comments:

Curious George said...

"[T]he President explicitly stated that “it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’” At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes...."

Exactly. He also said "It's not a tax". Fucking Roberts.

Ignorance is Bliss said...

At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes....

I bet John Roberts will be able to reconcile the President's remarks and the law's text with the position that the government now takes...

Ignorance is Bliss said...

Curious George-

Great minds think alike. Apparently, so do ours.

PackerBronco said...

At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes....

How about: "The President acted stupidly."

That's an oldie but a goodie.

Michael K said...

The rule of law is trembling and maybe the Court can prop it up. It needs it badly.

David Begley said...

Obama ignores the Fifth Circuit decision.

Who stops him? The Senate? SCOTUS?

Peter said...

“it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’” Obama's "If I were king" fantasy?

Hagar said...

Kings don't have that kind of power anymore.

But I don't think it is Obama's "fantasy." His experience is with Indonesia under Soeharto, grandpa and high school principal in Hawaii, and the Daley organization in Chicago and Illinois.

Bay Area Guy said...

A little bit of a pessimism may be in order considering the SCOTUS track record, but first things first - excellent decision by the 5th Circuit and God Bless Texas.

Brando said...

Normally I'd say the president is about to get another legal smackdown. But John Roberts has proven the Court is a political and not judicial organ. Plus, he's got the Four Leftist Horsepersons there to basically rule Obama Administration = Lawful.

Maybe I'll be surprised though. Roberts might feel like he has to throw some goodies to the other side, for balance. Which of course is exactly how the Supreme Court should operate.

Rick said...

[T]he President explicitly stated that “it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’”

What would this standard not apply to? Hypothetical: I would like to change the law defining the EPA's regulatory authority. Your failure to enact such a law grants me the right to change it unilaterally.

How would this be any different than rule by a Dictator (of the Roman sense)?

Bruce Hayden said...

I am currently in the middle of reading the opinion, the link to which you can find at the top of Adler's article.

One of the interesting things is that the Obama Administration apparently got in trouble here by using prosecutorial discretion to implement the policy, and then took away almost all discretion from the lower level employees who normally implement that discretion. Now, they are caught with their pants down. Earlier, they could have just gone through the normal APA Notice and Comment, then done what they wanted anyway (see this much more than we should). But, now, they probably don't have enough time left in office to do this, giving sufficient time to actually read the comments, etc.

Michael McClain said...

Under the Obama Regime, we no longer have Constitutional government. We have a cult of personality.

MayBee said...

Rick- good questions.

The Drill SGT said...

Bruce Hayden said...
One of the interesting things is that the Obama Administration apparently got in trouble here by using prosecutorial discretion to implement the policy


I understand the use in the context of rationing scarce resources, but the Departmental orders arguably were used to 'spend' money in some cases. How do they conjure 'prosecutorial discretion' to both violate clear legislative direction AND spend funds doing that?

F said...

If SCOTUS takes this case, as I believe Obama wants, should Justice Sotomayor not recuse herself? I don't believe she is an unbiased justice in this kind of question.

Gabriel said...

It's funny that President Obama is completely comfortable saying that he has changed the law, which it is illegal for him to do--it's as though he expects no negative consequences for anything he says or does.

"Since the killings took place, reporters across the country have struggled to come up with an appropriate take on the ruthless crime, with some wondering whether it warrants front-page coverage, and others questioning its relevance in a fast-changing media landscape."

Bruce Hayden said...

I understand the use in the context of rationing scarce resources, but the Departmental orders arguably were used to 'spend' money in some cases. How do they conjure 'prosecutorial discretion' to both violate clear legislative direction AND spend funds doing that?

They can't, of course. Note though that the money involved here was to have been spent by Texas to subsidize the driver's licenses of the illegals that would be now here legally under DAPA. The importance here was that DAPA would force Texas to spend money, and, thus, was sufficient for standing (meaning that the courts could hear the case). That was the first hurdle that they had to overcome. The Court noted that were other justifications for standing, but Texas being forced to spend money was all that was needed.

I think that the Administration was trying to side step the issue of clear legislative direction. But, it came around and bit them in their derrière. If Congress doesn't leave clear legislative direction, in the form of statutory language and sometimes legislative commentary, an agency can often claim a lot of room for discretion. This often means a lot of (APA controlled) rule making. The President, of course, said that he was acting because Congress would not. But, then this Court pointed out that Congress had spoken, and had done so in great detail, detailing different categories, how to move from one to another, etc. This wasn't really specific in the decision, but I got the strong impression that the President claiming that his actions were justified because Congress had not spoken, when in fact it had, but he just didn't like what they had said, was taken by the Court almost as an admission that the DAPA was ulta vires (i.e. illegal).

Gabriel said...

Texas being forced to spend money was all that was needed.

Yay Tenth Amendment!

n.n said...

The left's anti-native policies implemented overseas have enlightened Americans to their own fate under their amoral rule.

The Drill SGT said...

They can't, of course. Note though that the money involved here was to have been spent by Texas to subsidize the driver's licenses of the illegals that would be now here legally under DAPA.

No, the Feds are also spending money implementing DAPA and no, it is not covered completely by USCIS fees...

The Texas argument was about the costs to Texas. but there are Federal costs as well, but those aren't part of 'standing'. That would be an issue if it were Congress taking the case to court, arguing a Fiscal Law point.

The Godfather said...

This is a piece of good news at a time when we're being inundated by bad news.

HoodlumDoodlum said...

At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes....

Ah-ha-ha-ha-ha-ha, like that matters even a bit anymore! Old-ass Justice, get with the times. What the Admin says, how it sells things, even the text of the damn law or order are not themselves important, what is important is the outcome. Ask Chief Justice John Roberts, for God's sake--is it a tax, a penalty, just a fun thing to do on a Saturday night? Doesn't matter, what matters is the outcome, and if that outcome is considered good and can be found to be even a lil' in line with the Constitution, well sir, you better not stick your big nose into it, demanding "coherent, consistent, legally-sound reasoning." The very idea!

Frankly I'm almost offended that a judge would require consistency from the Executive--that he would dare to demand that the President defend a legal point in a consistent manner. This guy obviously didn't get the memo, but maybe he can be invited to the next State of the Union to get an education there.

HoodlumDoodlum said...

What price with the Obama Admin pay if this current ruling is upheld, by the way? The damage is done, was done a long time ago. Let's say the S. Court finds against the Obama Admin. Great, what then? The news will run wall-to-wall stories with pictures of little illegal immigrant kids crying, of families being torn apart, of gifted youngsters being handcuffed and hauled off...and the nation will weep and call for change--probably call for Republicans to be voted out of office!

This is how government works now, the actual law be damned. The Admin does more-or-less whatever it wants, gives special classes special benefits, dares anyone to oppose that move, casts any such opposition as evil/mean spirited, delays actual judgement as long as possible (stonewalling investigations, procedural delays, etc), and then relies on public ignorance, partisanship, and emotionalism to get their way even once a contrary legal or legislative order is finally made.

It's pathetic, but it's reality.

traditionalguy said...

If no one noticed it at the time Ponifex Maximus Obamacus started refusing to enforce U.S. laws as his oath of office had sworn him to do, it happened three years ago.

Since he became an open traitor to and destroyer of the United States the only option has been impeachment or hunkering down until his term ends.

That hunkering down has spoiled the Dems who expect to say boo and see the GOP leaders run away and hide.

That is why we need Trump's approach to attack, and not lectures on Carson's ultra-imminence being enough.

Dude1394 said...

When the supreme court can conjure up a tax for being alive, they can conjure up anything and will.

When they do, the constitutional amendment to have term limits and elections for these dudes should begin.

Beldar said...

This case proves the truism that an appellate lawyer can't be sure he'll win his appellate case based on his performance at oral argument -- but he can certainly do things to lose it then.

All three Fifth Circuit judges on this case, coincidentally, are based in Houston. I don’t know Judge Jerry Smith other than by reputation. I clerked for the dissenter, Judge Carolyn King, in 1980-1981. I tried a week-long state-court jury trial before the third member of the panel, Judge Jennifer Elrod, in 2006, shortly before her confirmation to the Fifth Circuit. These are three very good appellate judges, and their split votes will surprise none of their colleagues. I will be very surprised if the Fifth Circuit votes to rehear this en banc; rather, the liberal wing of the Fifth Circuit will likely be content to permit Judge King’s dissent to speak for them collectively in trying to urge the SCOTUS to reverse.

I think the SCOTUS will grant certiorari and agree to hear the case on an expedited basis — and would have, regardless of which way the Fifth Circuit ruled.

n.n said...

Dude1394:

A tax for being alive and a woman's right to commit premeditated murder.

All that remains is Obama to impose a penalty on breathing between life and death.

Bruce Hayden said...

I think the SCOTUS will grant certiorari and agree to hear the case on an expedited basis — and would have, regardless of which way the Fifth Circuit ruled.

You may be correct there, but... Part of the problem is the timing. If they expedite the matter, when would the oral arguments be? Spring? And, then a decision before the end of the term? That means dropping in the middle of the summer, not that long before the elections. If Justice Kennedy jumps ship, and brings CJ Roberts, that will likely drive Republican votes, possibly giving the election to the Republican nominee. I think that a pro-Administration ruling would drive more votes (against the Dems), than an anti-Administration ruling would fire up the Dems.

That is the thing - timing is everything here. If a Republican wins the election for President, and the Supreme Court hasn't ruled, the DAPA will likely be almost immediately revoked by the incoming Republican Administration - probably as one of its first moves. Which would leave the Supreme Court having stuck its neck out, and then had the case mooted under them. That is maybe part of why they try not to take cases that aren't final. Which may be the easiest thing to do here - not grant Cert. because the decision below isn't, yet, final.

Which gets me to how could the Supreme Court rule in favor of the Administration? I would think that the easiest approach would be to deny standing. That way, the states don't get to court, and the decisions below are dismissed. The problem there is that these states seem better position than MA, which got standing to sue the EPA for (bogus) global warming. How do they take standing away from the states this way, without reversing the MA EPA case? Much easier to have done the opposite - give the states standing here, and not have given it to MA back then. But, it it too late for that.

The alternative is to reverse on the merits. But, the Administration didn't bother to even try to conform to the APA. How do they craft a rule that would affirm this practice, without gutting the APA? How do they keep subsequent Administrations from just imposing rules without going through the statutory formal rule making process? I think that the Supreme Court would have a very messy time doing that.

The Chief Justice has shown himself willing to dance on the head of pins to get around the specific wording of statutes in politically charged cases like the ObamaCare cases. Is he willing to do so again? Or, does he and Justice Kennedy want to reconnect with the Republicans who put them on the high court?

Of course, these are just my ill informed thoughts. Many here are probably much better positioned to game this than I am.