How Will the Fifth Circuit Rule on DACA and DAPA?

It has been more that five months since the President gave this speech. The programs have been blocked by litigation, instead of allowing full implementation. Last Friday, the Fifth Circuit heard oral arguments regarding the injunctions. I do believe that  the Fifth Circuit will overrule the injunctions for the following reasons:

1. The injunction is very broad. This point was made by the government in its appeal. i do believe that such blanket injunction is very restrictive and is more injurious than the states are willing to admit.

2. The states lack standing. The Fifth Circuit ruled, in a similar case, that the State of Alabama lacked standing because the alleged injury was speculative. I believe that this is a similar case.

3. Immigration should remain a federal matter and the Court will be establishing a dangerous precedent if it allows the injunctions to go forward.

Hopefully, I am right.

Administration Appeals DACA and DAPA Injunction

The federal government appealed the decision to block the implementation of expanded DACA and DAPA. As you may remember, last week a District judge in Texas blocked the implementation of the President’s November 20, 2014 executive actions expanding DACA and establishing new relief for parents of US citizens and permanent residents. The ruling put a hold on USCIS’s acceptance of these applications, and stopped the expansion of the period of eligibility of these programs from 2 to 3 years.

The appeal raises several issues of law. It asks the Fifth Circuit Court of Appeals to lift the injunctions for lack of standing by the states, the limited amount of “injury” the states will suffer, and the fact that the Administration has a good chance of winning on the merits of the case. As to the standing, the Administration raised the point that federal immigration powers are “exclusive” and can not be challenged by the states. The appeal raised the point that other courts that ruled on the issue have dismissed them for lack of standing. For example, I have discussed Sheriff Arpaio’s case in an earlier post where the court ruled that he did not have standing and dismissed his suit.

The Administration also raised the point that the injury is speculative and that in fact some of the states admitted in their original  submissions that they will benefit from the new programs. The Administration asked the court to limit the injunction to Texas, if it found that the latter might suffer some sort of injury, since the injunction is overbroad and stops the program even in states that will benefit from the programs.

Lastly, the most important point raised in the appeal was the fact that the federal government would be harmed by the injunctions. The theory of harm here is very simple: if States were able to block the exclusive power of the federal government over immigration, then the latter can not execute our immigration laws. The Administration highlighted the fact that it has spent millions of dollars preparing for the influx of applications. It raised the issue that if the injunction stands, it will be forced to reinitiate the same procedures, wasting precious resources in the process. The Administration also mentioned in its brief that it would be sound public policy to lift the injunctions.

I have had a hard time accepting the injunctions. At the very least, states should not be allowed to block implementation of an exclusive federal power just because they do not agree with certain policies. Assume for a second that a state did not like the immigration benefits of the Violence Against Women Act (VAWA) or decided that the recent policy allowing immigration benefits for same-sex couples harms their constituents. A state should not be allowed to stop a federal program based on some speculative harm. I also believe that this case should have been dismissed on political questions grounds, just like Arpaio’s suit.

What do you think?

DRUM ROLL: President Obama’s Video Announcement of his Prime Time Address to the Nation

President Obama announced, in a video, that he will be giving a speech about immigration at 8:00 p.m. tomorrow.  It is very interesting that the President chose to announce this executive action in a prime time address. I remember that he announced Deferred Action for Childhood Arrival (DACA) by issuing the executive order without addressing the nation.

I believe that the President is doing this to debunk some of the misinformation regarding his authority to issue the executive order. Many scholars have issued statements endorsing the President and his plans, which others have not. I do believe that he has the power to issue the executive order, a right upheld by the courts after ICE officers sued the President after DACA. This should be a very interesting week.