NEW ORLEANS, Lousiana — The Obama administration faced stiff odds Friday in swaying a conservative-leaning appeals court to lift the freeze placed on the president’s sweeping executive actions on immigration.
It was a critical test for President Obama’s Nov. 20 unilateral measures, which are imperiled by a lawsuit brought by Texas and 25 other states.
The stakes: For the more than 4 million undocumented immigrants directly impacted by the actions, the 5th Circuit Court of Appeals’ looming decision will ultimately determine whether they must wait several more weeks, or months, before knowing if they can seek a shield from deportation.
Dozens of families and demonstrators from across the country rallied outside the courthouse to advocate for the millions of undocumented families that would likely qualify for deportation relief and a temporary work permit in the U.S.
Sounds of chants, drumming and jazz music from outside were a near-constant soundtrack in the backdrop of the courtroom where attorneys from each side were given an hour of oral arguments — an unusually long length of time for a motion such as this.
The case has been placed on an expedited track, a sign the court is taking the issue very seriously after a U.S. District Court judge in Texas placed a preliminary injunction on the executive actions in February. While the hearing addressed only the administration’s request for an immediate stay in the injunction, it’s likely that the full case will take months to fully resolve — potentially in the Supreme Court.
The 5th Circuit has built up a reputation as one of the most conservative appeals courts in the country. Attorneys for the Justice Department will be working against those stacked odds with two conservative-leaning judges on the bench. The third, Judge Stephen Higginson, is an Obama appointee and is expected to side with the administration.
At points during the oral arguments, Judge Jennifer Elrod, a President George W. Bush-appointee, appeared to side with the states. But Judge Jerry E. Smith, a self-proclaimed former “right-wing activist,” remained silent through the bulk of the hearing.
Benjamin C. Mizer, acting assistant U.S. attorney general for the Department of Justice’s Civil Rights Division, received a grilling from the panel. Elrod even chided Mizer for failing to present arguments that would prove that the federal government would ultimately prevail in fighting the lawsuit, let alone convince the court that day to issue an immediate stay.
“Haven’t you lost this motion today?” Elrod asked Mizer.
The Obama administration contends that the federal government does not have the resources to deport all 11 million undocumented immigrants currently living in the U.S. and that the president has the discretion to prioritize who gets deported, and who doesn’t.
That issue of discretion was covered at length during the hearing. Arguing on the behalf of the states bringing the suit, Texas Solicitor Gen. Scott Keller said Obama was effectively rewriting federal immigration laws through the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
“DAPA makes unlawful conduct lawful,” Keller, the former chief counsel under Texas Sen. Ted Cruz, said. “This would be one of the largest changes to immigration policy in our nation’s history.”
Only Higginson appeared to side with the federal government’s argument that immigration officials use discretion in the application process for the executive actions. He went on to raise concerns that future administrations would take the registry of applicants and reverse the deportation priorities, leaving millions of undocumented immigrants open to removal.
It is unclear how long it will take for the 5th Circuit Court of Appeals to make an ultimate decision. In the meantime, the demonstrators gathered in the muggy drizzle here vowed to keep up the pressure.
“This lawsuit is tearing down the hope that we got on Nov. 20 — the hope that we would finally be able to come out of the shadows and finally get a work permit and be able to integrate into this part of society of which we’re already a part of,” said Maria Lopez.
Fernando Lopez, an organizer with the local Congress of Day Laborers, said groups from across the country made executive actions happen, and now they’re back to protect the programs.
“This is not about just getting documentation,” Lopez said. “This is about justice and dignity.”