Powers separated

Republican lawmakers trumpeted a May 26 court ruling that delivered another setback to President Barack Obama’s unilateral immigration reform plans.

A three-judge panel of the 5th Circuit Court of Appeals denied the federal government’s emergency request to dismiss a lower court ruling that had previously halted implementation of the executive actions Obama announced in November (see “Obama he stands,” Dec. 13, 2014). The plan would have issued temporary work permits to several million illegal immigrants—particularly parents of U.S. citizens who have been in the country more than five years—shielding them from deportation until Congress passes permanent reforms.

“The separation of powers laid out by the framers of the Constitution is not just words on paper,” said Sen. Chuck Grassley, R-Iowa, chairman of the Senate Judiciary Committee. “For the near future the administration’s attempt to circumvent Congress and the rule of law on immigration policy will not be allowed.”

In February a Texas judge ruled in favor of 26 states that sued the federal government, saying the immigration actions would force them to provide additional services to immigrants. “Putting the toothpaste back in the tube” would be impossible, Judge Andrew Hanen wrote, if the administration began issuing work permits.

In a 2-1 decision, the 5th Circuit agreed. It noted “the public interest favors maintenance of the injunction” and predicted the U.S. government is “unlikely to succeed on the merits of its appeal.” The administration may seek a U.S. Supreme Court review, but that strategy is a long shot.

Although the 5th Circuit decision only applied to the administration’s emergency request, the 68-page opinion gave clear indications that the court is unlikely to side with Obama after it hears oral arguments on the underlying appeal in July.

The White House in a statement blasted “two judges of the Fifth Circuit” who “chose to misinterpret the facts and the law in denying the government’s request.” It insisted the president’s actions are “fully consistent with the law.”

Since the 5th Circuit did not rule on the merits of the case, it left open the possibility that a future ruling could still come down in favor of the administration. Legal experts are divided on whether Obama’s actions are constitutional, but a definitive answer may not come until late in the Obama presidency—or even after he leaves office.

“We’re confident the court ultimately will conclude that President Obama’s overreach, in effect, changed the law—a violation of the separation of powers,” said Jay Sekulow, chief counsel for the American Center for Law and Justice, which filed an amicus brief in the case on behalf of 113 members of Congress. “Impatient presidents don’t get to change the law.”