By Attorney Farhad Sethna ©2015
The 5th Circuit Court of Appeals has to make a decision on a very important case involving Executive Action.
On November 21, 2014, President Obama announced a series of executive actions. Among those were the expansion of the DACA (Deferred Action for Childhood Arrivals) program to additional beneficiaries. The original DACA program created by a previous Obama executive order had been implemented in 2012 without any legal challenge in the court. This was simply an expansion of the original DACA program.
President Obama also instituted a new program called “DAPA” (Deferred Action for Parental Accountability). Both the DACA and the DAPA programs allowed undocumented aliens or unlawful aliens to apply for temporary work authorization and temporary stays of removal, on the basis of long standing presence in the USA, family ties, and good conduct. For a detailed explanation of DAPA eligibility and the DAPA program, see other articles on my blog.
The Republicans revolted. They did not want Obama and the Democrats to seize any victories on the immigration front, because that could potentially create millions of grateful voters in the future. Therefore, the Republicans dug their heels in to defeat President Obama’s executive action.
The State of Texas carefully chose a court where it believed it would prevail. It filed a motion for an injunction in the US District Court in Harlingen, Texas, where it was assigned to a very conservative judge, a Republican appointee. That judge found that the state of Texas would bear a financial burden if it had to issue driver’s licenses to potentially hundreds of thousands of DACA and DAPA recipients.
That analysis is pure nonsense. How a state would be financially burdened to issue driver’s licenses is beyond me. Every state that I know of charges for a driver’s license. I just had my driver’s license reissued in Ohio, and it cost me $18.00. That’s $18.00 for a piece of plastic and a ten minute wait at the Deputy Registrar’s Office. Certainly not a difficult proposition for the State of Ohio, and one that I paid for. It wasn’t free. I am sure the $ 18.00 more than recouped the cost to the State of Ohio and the Registrar’s fee which includes the salaries of the Registrar’s staff. If it costs more to issue licenses to applicants in DACA and DAPA status, I am sure that Texas could charge an enhanced fee for such applicants in order to recoup any increased “administrative” costs.
However, the District Court judge in Texas found that the state of Texas would be hurt by this alleged “extra” expenditure. The State of Texas did not even have to show exactly how it would incur this “extra” expense on DACA or DAPA-status applicants. Keep in mind that to make a sound decision, a court must first demand and expect credible evidence. But this court did not. Incredible indeed! That’s the first part of the politicization of our federal judicial system.
The second part comes with the judge’s insistence on the government’s recovering the couple of thousand EAD cards which were mistakenly issued before the stay was granted. Those applicants were all contacted, and the USCIS painstakingly recovered all those approximately twenty five hundred EAD cards. Not satisfied with that, the judge even ordered senior officials of the DHS to appear before him to explain why the cards came to be issued in the first place.
While all this drama continued to unfold in Harlingen, the District Court injunction halting the DACA program was appealed to the 5th Circuit, which is based in New Orleans. In the meantime, the Obama administration asked the 5th Circuit to overturn the District Court decision and let the DACA/DAPA programs continue. Two of the judges on the three-judge panel were Republican appointees. One is a Democrat appointee. The two Republican appointees declined to overturn the Texas judge’s injunction, and instead let it continue. The Democratic appointed judge dissented.
The 5th Circuit set the matter for an oral argument more than two months after receiving the case. Why it needed that much time is anybody’s guess, when the facts were already clearly laid out.
Despite oral arguments on July 10, 2015, the 5th Circuit has not yet ruled on this matter. This is even though the 5th Circuit takes a position that it will make a decision within sixty days on cases that it has heard. Despite the enormity and importance of this case, and the fact that so many hundreds of thousands of individuals’ futures hang in the balance, the 5th Circuit has not yet issued a decision.
It is expected that the 5th Circuit panel will reach the same type of decision in the main case as it did in upholding the District Court’s injunction – the panel majority (two out of three judges) will strike down President Obama’s executive authority and it will disallow the DACA and DAPA programs.
If that is the case, then why not issue a decision?
The answer is simple. The more the 5th Circuit delays the decision, the more time passes. The more time passes, the less time there is for the Obama administration to appeal the 5th Circuit’s decision to the United States Supreme Court. The United States Supreme Court selects from cases that are filed before it by approximately the end of October of each year. If the 5th Circuit delays its decision until after the end of October, there will not be enough time for the Obama administration to file an appeal with the Supreme Court for it to rule in this fiscal year (2015-2016). The appeal will only be heard next year (2016-2017), which will be after all the presidential campaigning and presidential elections.
By doing so, the 5th Circuit is making sure that the Supreme Court does not have a chance to hear the case. If the Supreme Court hears the case, there is a chance that it will uphold President Obama’s executive authority, and therefore allow the DACA and DAPA programs to go forward. Republicans think they cannot afford to do this before the general election.
Of course, there is a chance that there are actually good legal arguments for striking President Obama’s executive action. But if there are, here’s a challenge to the 5th Circuit: Issue a decision, strike Obama’s executive order, and let the legal process move forward to the Supreme Court. Don’t run out the clock and deny either side their due process.
Given the current anti-immigrant mean spirited attitude by Republicans, it is no surprise that even Republican judicial appointees, who should be above the law, are drawn into the same viciousness.
While one can hope that the 5th Circuit will uphold DACA and DAPA, or at least make a decision in time for the Obama administration to file an appeal with the Supreme Court, don’t hold your breath. However, do pay attention to the situation, learn all the facts, and show your displeasure with the politicization of our judiciary by voting appropriately for your congressional representatives, senators, and president in future elections.
Whatever your political leanings – remember – this nation is supposedly grounded in the “rule of law, not of men”. The courts are our last defense against the excesses of the legislature or the executive. In that vein, “Justice Delayed is Justice Denied.”
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.