Fifth Circuit’s Use of Precedent Dooms GOP Lawsuit on Obama Immigration Action

To See President Biden's 5 Best Jokes At The White House Correspondents Dinner visit The Daily.

No matter how Republicans try to spin the President’s Executive Actions on Immigration, their attempt to sue the President into submission will fail.  The latest indicator of that is a unanimous ruling by the Fifth Circuit.  That ruling was made by 2 Republican judges and one Democratic judge.

Conservative Judge Andrew Hanen of Texas will  not have the last word about President Obama’s Executive actions on Immigration.

A panel of judges (2 Republicans and a Democrat) at the fifth circuit unanimously dismissed a similar suit brought by Mississippi, on two grounds.  First, the court ruled that the states which brought the suit do not have standing.  Second, the court’s interpretation of DACA and DAPA recognizes that deferred action is a form of prosecutorial discretion.  This completely contradicts the reasoning that Judge Hanen used to support his ruling.  This is significant because it goes to show that legal minds across the political spectrum recognize the deferred action is a form of allowing prosecutors to prioritize which immigration cases to pursue.

In plain English, the fifth circuit said Mississippi failed to prove it was damaged by the President’s executive actions, one of the things a party has to prove to have standing in a case.

Even if Mississippi had proved it had standing, the fifth circuit relied on precedent to reject the sort of reasoning Andrew Hanen used to substantiate his ruling.  In simple terms,  The fifth circuit said the President’s Executive Actions were deferred actions and deferred actions are a form of prosecutorial discretion.

As Sahil Kapur of TPM reported, experts on immigration law say this ruling destroys the Republican Party’s effort to use the courts to circumvent President Obama’s Executive Actions.

“I think DACA and DAPA will really turn on the same decision. I can’t see any meaningful distinction other than DAPA involves more people then DACA,” said Stephen Legomsky, a professor of immigration law at Washington University.

There is a lot of precedent, including from the Supreme Court of the United States to support this interpretation.

Since there are conflicting rulings this case is headed to the Supreme Court of the United States.  In likelihood, it will rule in favor of the Obama Administration given, the Court’s take on deferred action in a 2012 ruling.  Even Justice Scalia, who dissented in that case, didn’t claim that Executive Actions, such as the ones at issue now, are unconstitutional.

As noted by Immigration Impact‘s analysis of that case, Conservative Justices on the Supreme Court would have a serious problem in trying to rule against Obama’s executive actions.

But while Scalia clearly thought the administration’s policy was unwise, nowhere did he claim it to be unconstitutional. Nor could he, for as Scalia himself recognized in a 1999 opinion, the decision to grant a deferred action request neither requires statutory authorization nor is subject to review by federal courts.

No doubt, Republicans will try to take this case to the Supreme Court. However, the Arizona case shows that even the staunchest conservative Justices are unwilling to unravel previous rulings they made on the question of deferred action as a form of prosecutorial discretion. But then, it isn’t like there are better ways to use government resources than on frivolous law suits.

Adalia Woodbury

Former contributor.