Fifth Circuit Panel Skeptical of President Obama’s Executive Overreach
One week ago, a three-judge panel of the Court of Appeals for the Fifth Circuit heard oral arguments on whether to preserve the lower court’s preliminary injunction against President Obama’s unconstitutional Executive overreach on immigration.
In an effort to circumvent the lower court’s injunction halting the Obama Administration’s lawless Executive action, the Department of Justice sought a stay on the grounds that the injunction interfered with the government’s authority to determine which illegal aliens to deport.
A federal district court in Texas denied the Obama Administration’s motion to stay its February ruling. The court cited the Obama Administration’s lawyers’ misconduct, called the Administration’s statements “misleading,” and considered sanctions against Department of Justice lawyers.
As POLITICO reported, at the oral arguments before the Fifth Circuit panel, Judge Jennifer Elrod, appointed by President George W. Bush, expressed skepticism about the Department of Justice’ claim that the injunction impaired immigration officials’ discretion to grant or deny legal status to illegal aliens eligible for deferred status under the Executive Branch’s directive.
Judge Elrod questioned whether immigration officials had any such discretion in the light of the President’s statement at a February town hall in Miami “that any government official who did not halt the deportation of anyone who qualifies under his new plan would suffer the ‘consequences.’”
“When [the President] gives affirmative statements that you are entitled to relief ... is that puffery?” Judge Elrod asked.
Another judge, Stephen Higginson, appointed by President Obama, asked many questions of counsel for the States, suggesting doubts about the lower court’s ruling.
As POLITICO also noted:
Judge Jerry Smith, who has drawn headlines for clashing with Justice Department lawyers in other cases, did no bombthrowing Friday. In fact, he took a back seat at the argument, leaving Elrod and Higginson to do most of the verbal sparring with lawyers for both sides.
In his few comments, Smith did seem inclined against the administration, however. He pointed repeatedly to a 2007 Supreme Court ruling in which the justices held, 5-4, that states had standing to sue the EPA over its decision not to regulate greenhouse gases. That decision “may be key” to the outcome of the immigration litigation, the Reagan appointee said.
A decision from the Fifth Circuit is expected soon, and if the Fifth Circuit denies the motion for stay, the Department of Justice will likely take the case to the Supreme Court of the United States.
The ACLJ will continue its fight against President Obama’s unlawful actions and will continue to file briefs at every stage. Our briefs on behalf of numerous Members of Congress and hundreds of thousands of Americans have had an impact in the victories already won in this case.
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