Raul A. Reyes: 5th Circuit Court of Appeals' foot-dragging on Obama's executive actions on immigration could effectively kill it
He says inaction could void initiative to help Dreamers and their families, leaving U.S. even further from fixing broken immigration system
Editor’s Note: Raul A. Reyes is an attorney and member of the USA Today board of contributors. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are solely those of the author.
Call it death by delay. It has been nearly a year since President Obama announced his executive action on immigration. Last November, he outlined his plans to grant deportation relief to certain categories of undocumented immigrants, expanding the Deferred Action for Childhood Arrivals, or DACA, program (the so-called Dreamers) and adding the Deferred Action for Parents of Americans, or DAPA.
While immigrant rights groups cheered his move, Texas and 25 other states quickly moved to block it in the courts. The fate of his proposal is tied up with a panel of judges of the 5th Circuit Court of Appeals in New Orleans.
The decision by the 5th Circuit panel is overdue. By holding off on a ruling, the judges are opening themselves to charges of political partisanship. Whatever the reason for the ruling’s delay, the court is serving neither justice nor the American people by slow-walking a decision on Obama’s executive action.
By their own standards, the decision from the 5th Circuit panel is late. According to the frequently asked questions section on its website, “the court’s goal is to issue an opinion generally within 60 days after argument or submission.” But final arguments on the case were held on July 10, nearly four months ago, and this is a case in which the court agreed to an expedited appeal. There is no sound reason for the court to be dragging its heels.
It’s not like we don’t know how the court is going to rule. It will almost certainly uphold the existing injunction blocking implementation of Obama’s programs. We know this because the court already visited the main arguments in May, when a panel denied a request from the Obama administration for an emergency stay (temporary stop) of the injunction.
Back then, two out of the three judges on the panel ruled in favor of the injunction, writing, “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”
But time is of the essence here. Unless the court issues a ruling on executive action within the next few weeks, it will be too late to get an appeal on the calendar for the Supreme Court this term. That would push the issue back as far as 2017, after the presidential race and after President Obama has left office.
All the while, up to 4 million undocumented people who could benefit from Obama’s proposals will remain in a legal limbo. Congress will likely make zero progress on fixing our broken immigration system, especially since new House Speaker Paul Ryan just announced he has no intention of working with the Obama administration on the issue. And the country will lose out on the full contributions of those undocumented immigrants, who could be working legally.
Except for the presumed satisfaction of thwarting President Obama, it’s hard to see how anyone could view such an outcome as desirable. Delaying a decision on executive action, for example, is not going to make a significant number of undocumented immigrants return home. Instead they will keep working off the books and living in the shadows.
They will continue to put down roots, complicating any future potential solutions on immigration. Many in law enforcement will continue to scramble after 11 million undocumented people (the overwhelming majority of whom are working members of the nation’s economy and its communities), rather than being able to focus on those who are violent criminals and gang members.
Sadly, there are perhaps cynical motives in delaying a decision on executive action. The legal battle over Obama’s programs has been so long and drawn out that many potential beneficiaries of his move may have grown discouraged, thereby making them less likely to apply if and when the program ever goes forward.
If you think you are not up to speed on the status of Obama’s immigration proposal, imagine trying to follow its progress when English is not your native language and you lack familiarity with the U.S. legal system. Intentional or not, the court’s delay has helped sow fear and uncertainty in the immigrant community.
Yes, the legality of Obama’s executive action is an important issue and deserves thoughtful consideration. However, there has been ample time for such analysis, and there is both legal and historical precedent for presidents to act on their own on immigration. Consider that every president as far back as Eisenhower has taken executive action on immigration. Or that a 2014 Public Religion Research Institute poll found that the public puts a low priority on overturning Obama’s executive action. Americans want immigration solutions – not more gridlock.
Each day that passes without a decision, the 5th Circuit Court of Appeals loses credibility and semblance of impartiality. As a Los Angeles Times editorial recently noted, “This is not how justice is reached. The 5th Circuit needs to move this case along without delay.”
The public deserves a timely ruling on President Obama’s executive action. The ongoing court delay is unnecessary and unacceptable.