President Obama’s immigration actions face skeptical judges

http://www.politico.com/story/2015/06/obama-executive-action-immigration-fifth-circuit-court-judges-119544.html

Two judges who dealt a significant blow to President Barack Obama’s executive actions on immigration last month will again play key roles in deciding whether the controversial programs are legally sound.

Fifth Circuit Court Judges Jennifer Walker Elrod and Jerry Smith, both Republican appointees, in May ruled against the Obama administration’s request to proceed with the executive actions — which would protect more than 4 million immigrants here illegally from being deported — while the larger case on the legal merits of the new programs winds through the courts.

 And on July 10, they’ll both again hear arguments from Justice Department lawyers and officials from more than two dozen GOP-led states who have sued to stop the immigration actions, when the Fifth Circuit takes up the broader legal case.

The selection of Elrod and Smith was a surprise, since many observers expected that a different panel of three judges would be chosen to decide the broader legal issues. But the selection of Smith — who wrote the opinion denying the administration’s request for an emergency stay — and Elrod suggests Obama likely won’t have much luck winning the case at the Fifth Circuit, considered the most conservative appeals court in the nation.

Obama’s immigration actions — which would also grant work permits to undocumented parents of U.S. citizens and green-card holders — were put on hold in February after U.S. District Judge Andrew Hanen decided that programs were essentially new government rules that should have been formally published and opened for public comment before they would take effect.

David Leopold, a veteran immigration attorney and former president of the American Immigration Lawyers Association, said the presence of both Elrod and Smith on the appeals panel indicates that the Fifth Circuit is likely to rule against the administration again — raising the chances that this case would get pushed to the Supreme Court, perhaps during the heat of the 2016 presidential race.

“The merits are broader, but we know exactly where this court is going. Smith’s and Elrod’s opinion pretty much mirrors what Judge Andrew Hanen did, absent the political diatribes,” Leopold said Monday. “Unfortunately for the GOP, if this case goes to the Supreme Court, the Court will have to fix it and the GOP will be facing yet another national loss which will be bad for them politically and further tarnish their brand with Latinos.”

After the Fifth Circuit denied the administration’s request to let the executive actions proceed, the Justice Department announced that it would not seek an emergency stay to the Supreme Court. Instead, it would focus its energy on the larger legal issues at stake.

The third judge who’ll hear the case during oral arguments July 10 is Democratic appointee Carolyn Dineen King, who was selected by President Jimmy Carter.

The Justice Department has argued that the 26 states challenging Obama’s immigration actions lack legal standing to object, but a new move on Monday by the court panel appeared to signal that judges will likely side with the states on the question of standing.

The 5th Circuit panel hearing the immigration case issued an order asking both sides to address a new Supreme Court ruling upholding the right of Arizona’s state legislature to sue over a referendum that put redistricting in the hands of an independent commission.

While the justices ultimately rejected the challenge to that new system, the court’s majority found the legislature had standing to bring the case.

Just hours after that decision was handed down Monday, the 5th Circuit panel called for new briefs on the standing issue.

Josh Gerstein contributed to this story.

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