On Friday, a three-judge panel of the United States Court of Appeals for the Fifth Circuit heard oral arguments on temporarily lifting the injunction halting the implementation of President Barack Obama’s administrative relief program on immigration. Although there were questions from the Bench about the merits of the programs legality, a major focus was on whether the 26 states that filed the lawsuit against the Department of Homeland Security even had “standing” to sue.
“Standing” refers to the legal ability to file a particular lawsuit. If the court finds that the plaintiff states did not have standing, the injunction will be lifted.
All three judges expressed serious reservations over the ability of the states to bring the lawsuit. Generally, the Federal government has exclusive control over immigration law. States cannot sue the Federal government either to change the law or to change how it is enforced. The states had claimed that the Obama administration had “abdicated” the immigration power by ordering Homeland Security to not deport some undocumented immigrants and to issue them employment authorization instead under the DAPA and DACA programs. They said that this “abdication” gave the states power to sue. The judges did not seem to buy that argument.
The judges also questioned whether the harm the states said they would suffer, the cost of issuing driver’s licenses to immigrants receiving work permits, was not too remote. To sue, the states need to show that they would suffer irreparable harm if the program goes into effect. Two of judges did not seem to agree with the states. After all, if the cost of issuing driver’s licenses is accepted as sufficient to give standing, then the states could challenge virtually any immigration law.
The conservative states challenging administrative relief did better on the merits of the new Department of Homeland Security policy. Judge Jennifer Elrod worried that if the use of prosecutorial discretion was allowed to be so broad that it encompassed 4 million immigrants, that it might be hard to say that a future program covering all undocumented immigrants was not a proper exercise of discretion.
It is impossible to predict how the judges will decide this case. If they follow precedent, they will lift the injunction.
Although the road ahead on this case is filled with legal motions and appeals, the ruling by this panel will determine if administrative relief can begin before the summer.
You listen to the audio of the hearing here.