The Obama administration is ramping up its effort to rescue the president’s immigration actions from legal limbo.
A battle over a lawsuit filed by Texas and 25 other states, most led by Republicans, has put Obama’s programs in peril. In response, the administration is moving forward with an aggressive legal strategy, confident that the policies are constitutional.
Republicans who back the lawsuit argue Obama overstepped his authority. They also assert that extending deportation relief and work permits to millions of illegal immigrants would place a burden on taxpayers.
On Thursday, the Justice Department asked a federal appeals court to lift an order by a Texas judge that blocked the programs from taking effect.
The preliminary injunction from U.S. District Court Judge Andrew Hanen on Feb. 16 forced the administration to delay the executive actions. It came just 48 hours before the first applications would have been accepted. In an emergency stay request to the Fifth Circuit Court of Appeals, the Justice Department called Hanen’s ruling “unprecedented and wrong.”
The stakes are high. If the court overturns Hanen’s ruling, the Obama administration could begin implementing the programs. But if it sides with the Texas judge, the legal battle could continue, possibly for months.
“President Obama has acted legally, constitutionally, and also wisely,” said California Gov. Jerry Brown (D) who spoke to reporters at the White House on Friday after meeting with administration officials.
“I just think some of these Republican governors should be ashamed of themselves.”
Brown’s state has one of the largest populations of illegal immigrants in the U.S. and was one of 14 mostly blue states, plus the District of Columbia, that filed a legal brief Thursday arguing the programs should go into effect.
The administration is acting with a sense of urgency. It asked the Fifth Circuit to rule on the stay request within 14 days, a relatively short time-frame. And the administration proposed that the states respond within seven days. But the court on Friday turned down that request, allowing the traditional 10-day response time.
President Obama views immigration as a centerpiece of his legacy and his administration wants the legal battle resolved quickly.
“We’re going to be as aggressive as we can because not only do we know that the law is on our side, but history is also on our side,” the president said last month at a town hall co-hosted by MSNBC and the Spanish-language network Telemundo.
“I think the president of the United States is going to lose again,” Rep. Ted Poe (R-Texas) said Friday on Newsmax TV.
Resolving the court case would give immigrants who are eligible for benefits the reassurance that they can live and work in the U.S. without fear of deportation, according to immigrant-rights advocates.
“Any delay is extremely harmful for the populations that are preparing to come forward and stabilize the current dynamics in their lives,” said Marshall Fitz, vice president for immigration policy at the Center for American Progress, which has close ties to the White House.
The quicker the lawsuit is resolved, the more people the administration could sign up for deportation relief. And advocates believe once people are receiving benefits, it could become politically untenable for Republicans to undo the programs.
But immigrant-rights groups are concerned that the GOP could stall, and play for time in the courts.
“The clock is ticking on this administration,” said Fitz. “If you’re talking about this going to the Supreme Court and not having a decision until next June, then that is obviously a real concern.”
The administration already raised Republicans’ ire when they renewed deportation deferrals and work permits for 100,000 young illegal immigrants under a 2012 program.
And Obama’s lawyers are coming up with novel ways to argue against the Hanen ruling.
The Justice Department asked that the nationwide stay be lifted everywhere. But it also suggested the Fifth Circuit could keep it in place in Texas, since it was the only state Hanen ruled would suffer harm from the programs.
“A single state cannot dictate national immigration policy, yet that is what the district court allowed here,” the legal brief from the 14 states said.
Alternatively, the department suggested the ruling could apply to the 26 states that filed suit, but not the others.
Conservative legal experts called that proposal legally and practically impossible.
“An immigrant who lives in California and the next day could move to Texas, it doesn’t make sense,” said Josh Blackman, a constitutional law professor at the South Texas College of Law, who has helped file a legal brief in support of the lawsuit.
Republican officials and legal experts anticipate the courts will take their time in handling the case.
“The court process, as everybody in the country knows, takes a long time,” Poe said. “So we’re talking about months from now before any ruling by a higher court.”
Even if the administration doesn’t get its way and the legal battle stretches on for months, Republicans could still pay a political price, Obama supporters say.
States who back the programs say they could increase wages and boost their tax revenues. California could rake in $904 million in additional taxes over the next five years, according to a Center for American Progress study.
And the executive actions are popular with Hispanic voters, who will play an influential role in the 2016 elections.
Brown said it would be “unfortunate” for Republicans if the programs continue to be stuck in legal trouble, “because they are taking a stand against a very large group of people who tens of millions of Americans identify with and sympathize with.”
“I would say the Republican position on immigration at best is troglodyte and at worst unchristian,” he added.