Tuesday, May 26, 2015
An Independent Judiciary Checks An Imperial Presidency
A panel of three judges on the 5th U.S. Circuit Court of Appeals affirmed a lower court’s order halting President Obama’s executive action delaying deportation for up to 5 million illegal aliens.
The 5th Circuit denied a motion to stay the injunction and narrow its scope because, determining the government is unlikely to succeed on the merits of its appeal.
The opinion said the government’s action “makes aliens who were not otherwise qualified for federal public benefits eligible for ‘social security retirement benefits, security disability benefits, [and] health insurance under Part A of the Medicare program.’”
“Further, ‘each person who applies for deferred action pursuant to the [DAPA] criteria … shall also be eligible to apply for work authorization for the [renewable three-year] period of deferred action.’”
Such procedures would allow illegal aliens to “‘obtain a Social Security Number,’ ‘accrue quarters of covered employment,’ and ‘correct wage records to add prior covered employment,’” the opinion said.
It warned that should the program ultimately struck down, the illegal aliens who participated would have benefited improperly.
The injunction, the judges said, preserves the status quo.
“Under the injunction, DHS can choose whom to remove first; the only thing it cannot do is grant class-wide lawful presence and eligibility for accompanying benefits as incentives for low-priority aliens to self-identify in advance,” the court said.
The ruling Tuesday, 26 May, upheld the injunction issued by U.S. District Judge Andrew Hanen.
His preliminary injunction in February said: “The United States of America, its departments, agencies, officers, agents and employees and Jeh Johnson, secretary of the Department of Homeland Security; R. Gil Kerlikowske, commissioner of United States customs and Border Protection; Ronald D. Vitiello, deputy chief of United States Border Patrol, United States Customs and Border Protection; Thomas S. Winkowski, acting director of United States Immigration and Customs Enforcement; and Leon Rodriguez, director of United States Citizenship and Immigration Services are hereby enjoined from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents.”
Hanen later refused a government request to lift his order halting Obama’s DAPA program.
The appeals court ruling marks a huge setback for Obama’s strategy of giving millions of Democrat-leaning illegals a pathway to legal residency, Social Security numbers and other benefits, including critics say, voting rights.
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The case was brought by 26 states, led by Texas.
The judge released documentation of what he described as the government’s misleading statements, the Los Angeles Times reported.
Hanen’s ruling followed tense exchanges in court between government lawyers and the judge. Hanen had expressed frustration with the government for failing to inform him that officials had given deferred action to 108,000 applicants shortly after Obama announced his plan in November.
“The court expects all parties, including the government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths,” Hanen wrote.
Attorneys for the 26 states are arguing Obama’s executive action causes “irreparable harm” to their local interests.
WND reported Hanen ordered, at the time, the government to explain why federal officials had approved tens of thousands of three-year exemptions between Nov. 24, 2014, and Hanen’s injunction.
Hanen’s order, Feb. 16, did not block a 2012 plan that offers amnesty to those who were brought to the U.S. illegally as children.
But that program doesn’t provide for three-year exemptions, only two-year exemptions. The new exemptions are part of the administration’s November orders, which are the subject of the current case.
The Texas case was joined by Arizona Sheriff Joe Arpaio, who has a similar case before a federal appeals court in Washington, D.C..
Hanen’s order faulted the Obama amnesty plan because officials failed to comply with the Administrative Procedures Act.
Meanwhile, Obama, according to the Washington Times, told a Miami crowd he would move ahead with his executive action on immigration and vowed his administration would become even more aggressive in the weeks and months to come.
A filing from attorney Larry Klayman of Freedom Watch noted Obama said: “This is just one federal judge. We have appealed it very aggressively. We’re going to be as aggressive as we can.”
Wrote Klayman: “The Obama administration is continuing to signal not only its disagreement with the court’s order, which is its right, but beyond that its non-compliance with the court’s order.”
The Texas lawsuit was filed when the states suddenly faced massive new demands for public services such as schooling and health care from foreigners who previously had been subject to deportation.
Hanen granted a preliminary injunction that prevents the government from enforcing the Obama administration’s immigration orders. The ruling also confirmed WND’s exclusive report that, contrary to popular perception, the order to delay deportation was not an executive order by the president. Instead, it was a memorandum issued by Department of Homeland Security Secretary Jeh Johnson at Obama’s direction.
Klayman even noted that according to a Weekly Standard report, Obama was threatening “consequences” for federal employees who followed the judge’s order instead of the amnesty memos from Johnson.
That report quoted Obama saying: “Until we pass a law through Congress, the executive actions we’ve taken are not going to be permanent; they are temporary. There are going to be some jurisdictions and there may be individual ICE official or Border Control agent not paying attention to our new directives. But they’re going to be answerable to the head of Homeland Security because he’s been very clear about what our priorities will be.”
He continued, “If somebody’s working for ICE … and they don’t follow the policy, there’s going to be consequences to it.”
Sen. Jeff Sessions, R-Ala., at the time described the administration’s action as “another program that has not been authorized by law.”
“There’s been no sense at all by President Obama, the Department of Home Security [Secretary] Jeh Johnson, the Democratic members of this Congress, no concern about the employment prospects of lawful immigrants, green card holders and native-born Americans,” Sessions told the Times. “The first thing we should do is be focusing on getting jobs for Americans that are unemployed. Are we going to keep Americans on welfare and benefits while we bring in more and more foreigners to take jobs when we’ve got Americans ready and willing to take those jobs?”
Sen Ted Cruz, R-Texas, also raised the issue of compliance with the court order.
“Violating an unambiguous federal court order by defying its instructions to cease and desist a particular activity would represent a significant breach of your authority, and would be an escalation in abuse of our separation of powers,” Cruz wrote to administration officials. “For a president and his cabinet to telegraph intent to violate a federal court order requires additional scrutiny from Congress.”
But administration officials were unabashed in their intent.
The Washington Times said Cecilia Munoz, White House domestic policy director, addressed the issue: “It’s important to put [Hanen's order] in context, because the broader executive actions are moving forward. The administration continues to implement the portions of the actions that the president and the Department of Homeland Security took, which were not affected by the court’s ruling.”
Even Obama himself said, however, he couldn’t grant amnesty alone.
House Speaker John Boehner has listed 22 times when Obama has made such statements.
For example, in October 2010, Obama said: “I am president, I am not king. I can’t do these things just by myself. … I’ve got to have some partners to do it. … If Congress has laws on the books that says that people who are here who are not documented have to be deported, then I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as opposed to families who are just trying to work and support themselves. But there’s a limit to the discretion that I can show because I am obliged to execute the law. … I can’t just make the laws up by myself.”
WND also reported when yet another a federal judge in Pennsylvania declared the amnesty unconstitutional.
“President Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause and, therefore, is unconstitutional,” said U.S. District Judge Arthur J. Schwab.
The judge noted Obama “contended that although legislation is the most appropriate course of action to solve the immigration debate, his executive action was necessary because of Congress’ failure to pass legislation, acceptable to him, in this regard.”
“This proposition is arbitrary and does not negate the requirement that the November 20, 2014, executive action be lawfully within the president’s executive authority,” the judge wrote. “It is not.”
(By Bob Unruh, WND)