Most of you probably have heard by now that a panel of Fifth Circuit judges ruled 2-1 against the White House’s motion to stay the injunction that’s blocking the implementation of the expanded DACA and the DAPA programs. That’s really bad news for the millions of people potentially eligible. The judges in the case ruled that Texas having to issue drivers licenses gives that state standing to sue since it is being injured by the policy. Apparently, the drivers license fees paid by Texans doesn’t cover the true costs of a license. Texas could charge DACA and DAPA recipients a higher fee, but the judges felt that just having to establish two fees was an injury. Yeah, that seems a stretch to me as well.

In any case, the news media seems to be pushing the storyline that it’s now up to the US Supreme Court. That’s only partially true. Today’s denial can (and should) be appealed. But there’s another hearing in the Fifth Circuit in July to rule on the merits of the injunction itself and we don’t know which panel of three judges is going to hear the case. The White House got a really bad draw with this first panel – a Reagan and George W. Bush nominee along with an Obama appointee. Hopefully, the next one will be better.

Another option for the White House is to simply cut the losses and go for notice and rulemaking, something many have been arguing should have been done in the first place. As we just saw in the H-4 EAD litigation, you’ve got a lot less of a leg to stand on when challenging a regulation issued through this process.

In any case, the actual underlying authority for the President to use deferred action is still sound. It’s really unfortunate that we’re stuck waiting. The ironic thing is that the pain being inflicted by the GOP on immigrants will come back to them in next year’s election when Hillary Clinton will likely become the first woman to be elected thanks to the GOP getting a record low Hispanic vote. And with that will come four more years of Democrats getting to appoint the judges (as well as continuing DACA and DAPA when the legal fight is eventually won). There are many in the GOP who recognize this and are calling on the party to stop this impending disaster. Their warnings should be heeded.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind

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2 Responses to DAPA Implementation Further Delayed by the Fifth Circuit

  1. Ram says:

    President was challenging sue me each and every time. Now he has to handle legally. That should be right way even if that is delayed by years.In H4-EAD case the injunction was denied because Plaintiffs were not able to prove that they will get irreparable harm if injunction was not given. Still the judge accepted the lawsuit and could give any result after final arguments.

    Also it is legitimate to do fixes by congress. Just because of inaction of congress it is not a good idea to do fix by EO. The same EO could have been done by congress but when it was in congress democrats were asking too much(green cards for 11 m illegal immigrants)

  2. Tobias Nojob says:

    In legal terms the United States of America is currently in a State of War: Authorization for Use of Military Force (AUMF) — http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf

    During times of war and under the grounds of National Security, the Executive Branch is granted extraordinary powers to govern by decree if necessary; therefore, constitutional rights can be suspended at any given time and without notice if the government deems imperative.

    Amendment V
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
    (U.S. Constitution, Fifth Amendment)
    https://www.law.cornell.edu/constitution/fifth_amendment

    During times of war and under the grounds of National Security, compulsory registration and/or internment of certain US Citizens and Aliens living in Continental United States and overseas possessions into designated military areas is LEGAL.
    Executive Order 9066 is a historical precedence for this case and these types of actions carried out by the Executive Branch are non-reviewable by the courts. — http://www.ourdocuments.gov/print_friendly.php?page=transcript&doc=74&title=Transcript+of+Executive+Order+9066%3A++Resulting+in+the+Relocation+of+Japanese+%281942%29
    Read also Korematsu v. United States, 323 U.S. 214 (1944): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214

    Executive Order 9066 was rescinded by President Gerald Ford on February 19th, 1976 (AND NOT BY THE COURTS).
    http://www.fordlibrarymuseum.gov/library/speeches/760111p.htm

    The Constitution is based on British Common Law, Vatican’s Code of Canon Law and Admiralty Law (influenced the latter by the Ordinamenta et Consuetudo Maris). As a matter of jurisprudence, this historical document adheres to the doctrine that Admiralty Law prevails over Common Law and goes in accordance with Canon Law.

    As stated several times in the past, immigration is not a civil affair per se, instead it is governed by Admiralty Law – registration of aliens under a juryless court system.

    It is realistic to question the mediocre (and questionable) approach taken by the Obama administration legal team regarding their so-called “Executive Actions” on immigration – which were NOT Executive Orders as portrayed by mainstream media and NOT properly clarified by immigration advocates.

    BASED ON THE ARGUMENTS STIPULATED ABOVE, THE GOVERNMENT COULD HAVE ISSUED EXECUTIVE ORDERS PERTAINING TO IMMIGRATION UNDER UNDER THE GROUNDS OF NATIONAL SECURITY DURING TIMES OF WAR (GRANTING SOME SORT OF TEMPORARY RELIEF TO CERTAIN UNLAWFULLY PRESENT IMMIGRANTS), AND THOSE ACTIONS IN MOST INSTANCES CANNOT BE REVIEWED BY THE COURTS.

    A genuine statesman would have proceeded in that direction.

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