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DREAM Act

Dreamers can litigate in support of DACA

Good.

A federal district judge has allowed a group of young undocumented immigrants to intervene in a lawsuit where the state of Texas seeks to put an end to the 2012 Deferred Action for Childhood Arrivals, or DACA, program.

Brownsville-based U.S. District Judge Andrew Hanen will allow the Mexican American Legal Defense and Educational Fund to represent the group of young “Dreamers,” the common term for young undocumented immigrants who were brought to the country as children and have lived here most of their lives. They argue they would be irreparably harmed if the popular Obama-era program ends. The initiative shields recipients from deportation and allows them a renewable, two-year work permit.

The decision Tuesday comes after Texas Attorney General Ken Paxton made good earlier this month on a long-standing promise to sue the Trump administration with the hopes of ending the program, alleging it is unconstitutional. Neither side opposed the intervention, according to a MALDEF press release.

[…]

MALDEF officials have said the intervention is necessary because Texas and the Trump administration are in lockstep in their efforts to see the program eliminated.

“Today’s order of intervention ensures that this case will not go forward as a sweetheart arrangement between non-adversaries who agree with each other on almost every relevant issue,” Thomas A. Saenz, MALDEF’s president and general counsel, said in a statement. “Interveners and their counsel will present a vigorous defense of DACA, an initiative in effect for many years and from which Texas and every other state have benefited.”

See here for the background, and here for the MALDEF press release. This is not the first time we’ve seen a group of stakeholders who had not been directly involved in a lawsuit for which the federal government was a party ask to be included because they didn’t have any faith that the Trump Justice Department would litigate in good faith. If there was ever a case for which the affected parties needed vigorous representation, this is it. Here’s hoping for the best.

Paxton sues to end DACA

This guy, I swear.

Best mugshot ever

Following through on a months-old promise, Texas Attorney General Ken Paxton filed a lawsuit Tuesday to end the Deferred Action for Childhood Arrivals program, leading a seven-state coalition against an Obama-era immigration measure that protects hundreds of thousands of immigrants nationwide from deportation, including more than 120,000 in Texas.

Paxton first threatened in June 2017 to sue over the program if President Donald Trump’s administration had not ended it by September. After federal court rulings blocked the Trump administration’s efforts to end the program, Paxton wrote in January that he would consider filing suit if DACA still stood in June.

But a recent ruling in favor of DACA seems to have shifted up Paxton’s timeline. The announcement comes exactly a week after a federal judge in Washington, D.C. ordered the Trump administration to continue the program and reopen it to new applicants. That was the third — and by far the strongest — rebuke of Trump’s efforts to rescind the program. Judges in California and New York had previously ordered the administration to renew work permits for immigrants enrolled in the program.

[…]

Liberal groups and lawmakers quickly condemned Paxton’s lawsuit, with state Rep. Rafael Anchia calling it “not only bad policy, it’s bad politics.”

“Instead of wasting taxpayer funds to pick on these Americans without status, the Attorney General should join the bipartisan chorus calling on Congress to fix a broken immigration system that denies these kids their rightful place at the American table,” said Anchia, a Dallas Democrat who chairs the Mexican American Legislative Caucus.

Ending the program would cost Texas more than 100,000 workers and nearly billions of dollars in GDP losses, MALC said in a press release. Ending DACA will lead to “the separation of countless families,” said Cristina Tzintzun, the founder of Jolt Texas, a new group working to mobilize young Latino voters.

Paxton warned Tuesday that conceding the presidential power to establish a program like DACA sets a dangerous precedent that could allow executives to “ignore the will of the people” and set their own policies on a long list of policy points. Paxton also criticized “activist judges” in federal court for keeping in place an “unconstitutional” law.

See here for some background. There really is no dimension along which destroying DACA is a good idea, not that such things matter to the likes of Paxton. DACA also polls really well, including among Republicans, which may be why Paxton could only round up five co-conspirators this time. And you know, the guy who goes court-shopping for nationwide injunctions against laws he doesn’t like can take that “activist judges” crap and stick it where the sun don’t shine. I never thought I’d want to see someone get convicted of a felony more than I wanted to see Tom DeLay get convicted of a felony, but I really really want to see Ken Paxton get convicted of a felony. The Chron and RG Ratcliffe have more.

Action alert: Rally at Culberson’s office for a clean DREAM Act

From the inbox:

Mothers, children, and other allies will gather in front of John Culberson’s office to demand a Clean DREAM Act this Thursday at 4 PM. The gathering will feature remarks from children of mixed status parents and mothers who are enraged at government support for tearing apart families in our communities.

In spite of the fact that 76% of the American people support a clean DREAM Act- as does the majority of Congress- our Houston area congressional representatives such as John Culberson continue to cater to extremists and the White House instead of doing what is right.

We say ENOUGH.

Moms, children, and other community allies are ENRAGED.

Join us this Thursday, February 22 nd at 4 PM, at John Culberson’s office located at 10000 Memorial Dr. to DEMAND a Clean DREAM Act NOW. In the wake of Hurricane Harvey and so many other challenges, when so many have lost their homes and their belongings, and some have lost loved ones, our reps MUST not only bring actual support for those who are hurting but also STOP the anti-family agenda that endangers our friends and neighbors.

#CleanDREAMActNow

Who: Indivisible Houston, Pantsuit Republic Houston
What: Solidarity Action
When: Thursday, February 22, 2018, 4 PM-5:30PM
Where: John Culberson’s Houston Office, 10000 Memorial Dr.

There’s a Facebook event for this here, and here’s a map for the location. Go vote and go rally, you’ll be glad you did.

Concerns about the Census

We need to pay attention to this.

Latino leaders are warning of a developing crisis in the 2020 census and demanding that the Census Bureau act aggressively to calm fears in immigrant populations about data misuse.

Citing focus groups and initial interviews in Texas and across the country, the bureau’s Mikelyn Meyers recently reported “an unprecedented groundswell in confidentiality and data sharing concerns” related to the 2020 count.

“We’re concerned that this may present a barrier to participation in the 2020 census,” she said. “And this is particularly troubling due to the disproportionate impact on hard-to-count areas.”

Harris County, which is roughly 42 percent Hispanic, has long been an area of concern for the Census Bureau. Last spring, officials tested new technology in only two counties – Harris and Los Angeles – aimed at improving response rates in hopes of finding solutions before 2020.

More than 1.45 million people live in what are considered “hard-to-count” census tracts in the nine congressional districts that include Harris County, according to U.S. census data analyzed and mapped by the City University of New York’s Center for Urban Research. The researchers counted tracts with response rates below 73 percent in the 2010 census as “hard to count.”

Laura Murillo, president and CEO of the Houston Hispanic Chamber of Commerce, noted that the Latino community has historically shied away from participating in census surveys. For the 2010 census, the Houston chamber hosted information sessions and explained that responses assist the government in making decisions about how to spend federal tax dollars.

While Murillo said the chamber is willing to partner with the Census Bureau again, the federal government’s actions on immigration have alienated many Latinos and will make openly sharing information with government officials a hard sell. She cited the Trump administration’s decisions to push for a border wall and end the Deferred Action for Childhood Arrival program, also known as DACA, as reasons some may find to be wary.

“Trust has been breached,” she said.

Two things to remember. One is that the Census is actually specified in the Constitution, so just on that alone it’s a big deal. Two, in addition to political purposes such as apportioning Congressional districts, businesses and academics and local governments and more rely heavily on the demographic and economic data that the Census provides. We need to get this right, and that means (urk) depending on the Trump administration to not screw it up. You can see why people are raising the alarm.

Hiding in Harvey’s shadows

Most of the people who have been affected by Harvey have begun to get help for their recovery. Undocumented immigrants represent the bulk of those who have not.

The water surged into the modest low-lying apartments with the full force of nearby overflowing Greens Bayou, slamming toys and tiny buckled shoes onto countertops and overturning chairs.

Byron Soto waded through knee-high water, carrying his toddlers to a second floor. But as the menacing tide edged closer, he used a friend’s inflatable boat to get to a vacant apartment on higher ground at the complex where he and his family are still camped out.

He, and others like him in the flooded apartments near Interstate 10 and Federal Road, didn’t think about calling 911. Instead, they did what they often have had to do while living illegally in the United States: They improvised.

After all, who would come to their rescue? The president wants them deported. The governor and state Legislature enacted a law allowing police officers to report them, though a federal judge blocked it late last week. Their labor will be needed for the massive reconstruction ahead, yet they are fearful of stepping forward to help their community recover.

“I’m afraid,” said Soto, a 31-year-old construction worker from Guatemala who has been here for a decade. “They’re going to deport me and then what would happen to my kids?”

This is a human tragedy and it breaks my heart. The city of Houston and Mayor Turner have done the right thing by assuring everyone they will get the assistance they need and will not be asked about their immigration status, but these folks have a lot of reasons to be afraid. And now with the termination of DACA, things aren’t about to get any better. If a society is judged by how it treats its poorest and neediest, we’ve got a lot of room to improve.

On DACA

I don’t have enough words to sufficiently condemn Donald Trump’s shameful decision to end the Deferred Action for Childhood Arrivals program. So, I’m going to let these people to speak for me. And these people, and these people, and this guy, too. Donald Trump pardoned Joe Arpaio, and now he wants a million kids to deport themselves. We should never forget that, nor should we forget the lickspittles like Ken Paxton who urged him on. If you’ve ever wondered if there’s a bottom to this administration or its enablers, the answer is no. There’s always lower to go. Stace has more.

Paxton goes after DACA

I have no words.

Best mugshot ever

Texas Attorney General Ken Paxton and officials from nine other states on Thursday urged the Trump administration to end an Obama-era program that’s allowed hundreds of thousands of undocumented immigrants to live and work in the country without fear of being deported.

In a letter to U.S. Attorney General Jeff Sessions, Paxton urged the White House to rescind the 2012 Deferred Action for Childhood Arrivals, or DACA, program. DACA applies to undocumented immigrants that came to the country before they were 16 years old and were 30 or younger as of June 2012. It awards recipients a renewable, two-year work permit and a reprieve from deportation proceedings.

As of August 2016, more than 220,000 undocumented immigrants in Texas had applied for a permit or a renewal of one under the program, and nearly 200,000 of those have been approved, according to government statistics. It’s the second-highest total behind California’s estimated 387,000 applications and 359,000 approvals during the same time frame.

“We respectfully request that the Secretary of Homeland Security phase out the DACA program,” Paxton wrote. He was joined by the attorneys general of Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia, as well as Idaho Gov. C.L. Otter.

“Specifically, we request that the Secretary of Homeland Security rescind the June 15, 2012 DACA memorandum and order that the Executive Branch will not renew or issue any new DACA or Expanded DACA permits in the future,” Paxton wrote.

[…]

The Mexican American Legal Defense and Educational Fund, or MALDEF, blasted the move and warned the signatories they’ll be remembered for being on the wrong side of history.

“Their evident xenophobia is not remotely consistent with the trajectory of our nation’s history and future progress,” MALDEF president and general counsel Thomas Saenz said in a statement. “Their political careers and each of their states will suffer from their mean-spirited stupidity.”

I don’t even know what to say about this. It’s cruel, it’s stupid, and I can’t think of a meaningful definition of “Christian” that would allow for it. The one sure to be effective thing we can do about this is to elect an Attorney General who won’t pull this crap. Nothing will change until we change who we elect. The Press, the Current, and Daily Kos have more.

Deportation nation

Appalling.

The Trump administration on Tuesday moved one step closer to implementing the president’s plans to aggressively rid the country of undocumented immigrants and expand local police-based enforcement of border security operations.

In a fact sheet outlining the efforts, the Department of Homeland Security said that though their top priority is finding and removing undocumented immigrants with criminal histories, millions more may also be subject to immediate removal.

“With extremely limited exceptions, DHS will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to enforcement proceedings, up to and including removal from the United States,” the fact sheet explains. “The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crimes, beginning with those convicted of a criminal offense.”

The memo did not include instructions to halt the 2012 executive action called Deferred Action for Childhood Arrivals, or DACA, which has allowed about 750,000 undocumented immigrants who arrived in the United States as children to live and work in the country legally.

The guidelines also state that the Department of Homeland Security has authority to expedite the removal of undocumented immigrants who have been in the country illegally for at least two years, a departure from the Obama administration’s approach of concentrating mainly on newly arriving immigrants.

“To date, expedited removal has been exercised only for aliens encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the United States by sea other than at a port of entry,” the agency states.

The action also seeks to expand a police-based immigration enforcement program known as 287(g), which allows local and state officers to perform immigration duties if they undergo the requisite training. The program fell out of favor under the Obama administration after Immigration and Customs Enforcement announced in 2012 that it wouldn’t renew contracts that were in place at the time.

“Empowering state and local law enforcement agencies to assist in the enforcement of federal immigration law is critical to an effective enforcement strategy, and CBP and ICE will work with interested and eligible jurisdictions,” the memo reads.

This is going to be a humanitarian catastrophe. It’s going to be devastating for a lot of industries – agriculture, construction, hospitality – all of which will be a drag on Texas’ economy. It will do further damage to our already dented international reputation. And it won’t do a damn thing to make us safer. I wonder what Jeff Sessions will do when churches start offering sanctuary to people who are being targeted. Oh, and it will be a big unfunded mandate on cities and counties, in the same way that the “sanctuary cities” bill in the State Senate will be, if local cops are being required to enforce immigration law. This is going to be very, very ugly. Political Animal, Daily Kos, the Current, and ThinkProgress have more.

SCOTUS rejects reconsideration of immigration ruling

Alas.

The U.S. Supreme Court has declined the Obama administration’s request to reconsider a controversial immigration program that would have let millions of undocumented immigrants stay in the country legally.

The program, Deferred Action for Parents of Americans and Lawful Permanent Residents, would have shielded about 4 million undocumented immigrants from deportation. It was scheduled to take effect in February 2015 but was halted that month by a U.S. district judge in Brownsville, who ruled that it violated the Administrative Procedure Act, which governs how federal regulations are made and how much input the public has.

Texas brought the initial suit against the federal government; 25 states eventually joined in.

The U.S. 5th Circuit Court of Appeals twice upheld the district court’s ruling, and the Supreme Court heard arguments on the case in April. The high court announced in June that it was deadlocked 4-4, which left the injunction blocking the program in place.

In July the White House asked the Supreme Court if it would reconsider the case when it had a full bench. The court is still one short since the February death of Justice Antonin Scalia. On Monday, the court announced it would not.

See here for the background. This is far from the end of the story, since this was a preliminary injunction, and the case has not yet been scheduled for a hearing on its merits. Whatever happens then, there will be another round of appeals, and eventually SCOTUS will get involved whether it likes it or not. In addition, as this was a nationwide injunction issued by a federal district court judge, it is entirely possible that a lawsuit originating in a different federal district could lead to a conflicting result. Indeed, such a challenge has already been filed.

Martin Jonathan Batalla Vidal is an undocumented immigrant and long-term resident of New York, where he’s lived since his arrival from Mexico nearly 20 years ago. Vidal makes his home in Queens, and, like many other young aspiring Americans, he studies hard to finish his education — he’d like to become a medical assistant — and helps support his family.

In November 2014, Vidal filed an application for Deferred Action under DACA 2012; the deportation deferral program enacted by the Obama administration in 2012 which offers qualified immigrant youth a temporary deportation reprieve and a work permit. In early 2015, based on DACA+, which expanded the deportation deferral period of DACA 2012 from two to three years, Vidal was granted a three-year work permit.

Then, 2,000 miles away, in a federal courthouse in Brownsville, Texas, Judge Andrew Hanen issued an order blocking DAPA and DACA+. Consequently, the U.S. Department of Homeland Security abruptly revoked Vidal’s 3-year work permit and replaced it with a 2 year card.

Vidal was not party to the Texas immigration case. Judge Hanen had no personal jurisdiction over him, nor did he ever set foot in Hanen’s courtroom.

So Vidal has asked the U.S. District Court for the Eastern District of New York to declare that Hanen’s “nationwide” injunction against DAPA and DACA+ should not apply to immigrants who live outside the 5th circuit. Vidal asked the court to enjoin the DHS from revoking his 3 year work permit; in effect asking the court to issue an injunction against Hanen’s injunction.

It would appear that he may have found a judge sympathetic to that position and not inclined to feel bound by Judge Hanen’s order. So we’ll see what happens from there, assuming that judge does indeed contradict Hanen. Until then, score one for Republican obstruction. Think Progress, Daily Kos, and America’s Voice has more.

Can we try this again with nine Justices, please?

Can’t hurt to ask.

The Obama administration on Monday asked the U.S. Supreme Court to reconsider the legality of the president’s controversial immigration enforcement plan, which stalled last month when the high court deadlocked on an appeal.

The program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, was announced in November 2014 and would have shielded about 4 million undocumented immigrants from deportation. It was scheduled to go into effect in February 2015 but was halted that month by U.S. District Court Judge Andrew Hanen of Brownsville.

Hanen ruled that the administration violated the Administrative Procedure Act, which governs how federal regulations are made and how much input the public has. His decision was upheld by the U.S. 5th Circuit Court of Appeals.

The Justice Department appealed to the Supreme Court, but without a full complement of judges after the death of Justice Antonin Scalia the high court deadlocked 4-4, effectively upholding the 5th Circuit’s ruling. In Monday’s filing, the administration asked the court to hear the case again when it has nine justices.

“This filing is consistent with historical practice and reflects the need for prompt and definitive resolution of this important case,” Department of Justice Spokeswoman Melanie Newman said in a statement.

The filing for rehearing by the Department of Justice concedes the Supreme Court rarely rehears ordinary cases. But it argues it’s not unheard of when the court is missing a justice.

“Ordinarily, it is exceedingly rare for this Court to grant rehearing,” the petition states. “But when this Court has conducted plenary review and then affirmed by vote of an equally divided court because of a vacancy rather than a disqualification, the Court has not infrequently granted rehearing before a full Bench.”

See here for the background. As I understand it, all of the cases for which SCOTUS split 4-4 are still basically undecided, since without a definitive SCOTUS ruling there’s no governing opinion, and there remains the chance of conflicting opinions from appeals courts. As such, they can and in most cases will continue on and find their way back to SCOTUS eventually. Here, the district court hasn’t even had a trial – the fight was over the judge’s injunction that put the DAPA and expanded DACA orders on hold pending the litigation – so it makes sense to ask to jump the line when the Court is back at full strength. Assuming it ever is, of course – these days one needs to be careful about what assumptions one operates under. I have no idea how this is going to work, but as I say it can’t hurt to ask. A copy of the petition is here, and SCOTUSBlog, which characterizes this as a “longshot”, has more.

SCOTUS punts on immigration order

Ugh.

ealing a major blow to President Obama’s controversial executive immigration order, the U.S. Supreme Court announced Thursday it had failed to produce a majority opinion on the policy — meaning that the U.S. 5th Circuit Court of Appeals’ November 2015 decision rejecting the policy stands.

The program had been blocked in February 2015 by a Brownsville-based federal judge, Andrew Hanen, days before it was scheduled to begin.

In a one-sentence opinion, the Supreme Court declared, “The judgment is affirmed by an equally divided Court.”

[…]

Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, was announced in November 2014 and could have granted deportation relief to more than 4 million people living in the country illegally — including more than 1 million undocumented immigrants in Texas. The program would also have allowed the immigrants to apply for renewable work permits if they have lived in the country for more than five years, pass background checks and pay fines.

As of 2015, about 533,000 undocumented immigrants in Texas — roughly 40 percent of the state’s undocumented-immigrant population — had children legally in the country, according to the Washington-based Migration Policy Institute. About 1.17 million undocumented immigrants living in Texas have been in the country for at least five years, including about 222,000 who have lived here for more than 20 years.

See here for the last update; there’s a timeline of events on the Trib page. The SCOTUS “ruling” leaves in place Judge Hanen’s ruling, which was upheld by the Fifth Circuit, but it’s unclear how or if it applies anywhere else. It’s not hard to imagine another case originating in, say, California, and getting a different ruling from another appeals court, at which point one presumes SCOTUS will have to deal with this again. Maybe by then SCOTUS will have nine members, or maybe by then President Clinton will have signed an immigration reform bill that makes this all moot. I think we can all agree that SCOTUS’ actions did not resolve anything, and that this issue is now even more important this November. ThinkProgress, Daily Kos, Vox, Wonkblog, the Press, and the Current have more.

Hanen stays his sanctions

Good.

The Texas-based judge that last year put a hold on President Obama’s executive order on immigration decided on Tuesday to also suspend a controversial punishment he had recently issued to the administration’s attorneys.

U.S. District Judge Andrew Hanen asserted in May that the federal government’s attorneys intentionally misled his court during last year’s proceedings over the Obama administration’s order on immigration, known as Deferred Action for Parents of Americans and Lawful Permanent Residents.

As punishment, Hanen ordered the government’s attorneys to attend ethics classes in the 26 states that filed suit while directing the Department of Justice to turn over the names and confidential information of about 50,000 undocumented immigrants he said benefited from the administration’s plan prematurely.

On Tuesday, however, Hanen put his own order on hold and instead scheduled a status conference on the issue for August. The decision came after critics blasted Hanen’s order as a potential breach of privacy for the tens of thousands of undocumented immigrants.

“Judge Hanen was very thoughtful in the way he approached the idea that the 50,000 [deferred action] recipients are really innocent bystanders in this,” said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund, or MALDEF.

[…]

MALDEF has also asked the 5th Circuit to stop the order outright, a request the group said it would continue to pursue.

See here, here, and here for the background. A copy of yesterday’s order is here. I’m glad to see this, but I’ll be rooting for MALDEF to prevail in squashing it for good at the Fifth Circuit. The August status conference will come as we await a decision from SCOTUS as to whether the plaintiffs have standing to sue in the first place. If they don’t, this is all over pending any further sanctions from Judge Hanen. If they do, then we’re just getting started. Needless to say, I’m rooting for the former. A statement from the ACLU of Texas, which had joined with MALDEF and the National Immigration Law Center (NILC) in petitioning the Fifth Circuit to stay Judge Hanen’s sanction order, is beneath the fold.

(more…)

Justice Department appeals Hanen sanctions to Fifth Circuit

Missed this over the weekend.

Escalating its constitutional battle with a federal judge over the ethics of government lawyers in the major test case on presidential power over immigration, the Justice Department late Friday night asked a federal appeals court to swiftly nullify the judge’s order of sanctions.  In a massive filing of nearly four hundred pages, the department also asked that the judge’s order be put on hold while it is being challenged in the U.S. Court of Appeals for the Fifth Circuit.

This new conflict between the Obama administration and U.S. District Judge Andrew S. Hanen of Brownsville, Texas, is separate but related to the case that the Supreme Court is expected to decide this month on the legality of the immigration policy that the president announced in November 2014; it has not gone into effect.  If the government wins in that case, its lawyers told the Fifth Circuit, that would undermine a key part of Judge Hanen’s ethics order — a part that would affect some 50,000 young undocumented immigrants.

[…]

The large file of papers submitted to the Fifth Circuit included a petition for mandamus seeking to have the ethics order set aside, a motion for a stay until the mandamus plea is decided, and — if there is no stay — a request for an administrative delay while the stay plea is considered. Review of the mandamus plea should be expedited if no delay is granted of the Hanen order, the government suggested.

In addition, demonstrating that the government was using every legal maneuver it had to challenge Judge Hanen on the ethics question, it notified the Fifth Circuit that it believed that the merits of the ethics orders are now subject to an appeal, which the government will also be filing.

Even without that separate appeal, however, the petition for mandamus sought to lay before the Fifth Circuit the full scope of the government’s complaint against Judge Hanen in the controversy over ethics. It included details of the Justice Department’s version of the events that led Judge Hanen to find ethical violations, and explained the potential impact of the ethics order. It argued that the ethics dispute arose mainly from misunderstandings between the judge and the lawyers about just what was at stake, and not from a ploy by government lawyers to mislead the court.

The filings contended that the judge had no basis for his order (1) finding any ethical violation, let alone an intentional one; (2) imposing any sanctions without advance notice of just what they would be and a chance to contest them; (3) imposing broad new ethical training obligations on some 3,000 Justice Department lawyers, thus unconstitutionally intruding on the Justice Department’s management of its own employees; (4) imposing requirements on those attorneys as they appear in any court, federal or state, in any of the twenty-six states that had sued in the case, since his authority to deal with ethics extends only to cases directly in his court; and (5) ordering the government to hand over a vast amount of personal data about some 50,000 young undocumented immigrants who were given an extra year of deferral of potential deportation under the new policy, thus intruding on those individuals’ privacy and disrupting the government’s management of immigration policy.

See here, here, and here for the background. Judge Hanen ordered the information in question to be turned over to him by this Friday, so the DOJ is asking the Fifth Circuit to take action on this by tomorrow. In the meantime, there is a hearing today in Judge Hanen’s court on the request by the DOJ to stay his own order. I kind of feel like they’re not going to get any joy out of that, but you never know. One way or the other, things will happen quickly in this case. The WaPo has more.

Groups ask Fifth Circuit to block Judge Hanen order

Interesting.

A coalition of civil and immigrant rights groups on Friday asked an appeals court to stop a federal judge’s order that requires the Obama administration to turn over the confidential information of thousands of undocumented immigrants.

The filing in the U.S. 5th Circuit Court of Appeals by the National Immigration Law Center, the American Civil Liberties Union Immigrants’ Rights Project and the ACLU of Texas is on behalf of four undocumented immigrants, including two Texans. The immigrants say they are nothing more than pawns in a political game whose privacy will be breached if the order stands.

The petition is in response to a mandate issued May 19 by U.S. District Judge Andrew Hanen of Brownsville. Hanen concluded that the Obama administration intentionally misled his court during the trial over the president’s controversial 2014 executive action on immigration, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. An expanded version of a 2012 action, Deferred Action for Childhood Arrivals, was also included in the suit, although the original 2012 action was not.

Hanen said the administration’s attorneys knowingly misrepresented facts about when applications for the program were accepted and how many undocumented immigrants benefited prematurely from the program by receiving three-year work permits under the preceding 2012 program. In response, Hanen ordered the department to turn over the names, addresses and immigration information of about 50,000 immigrants. Hanen ordered that the information be turned over next week. He also ordered the government’s attorneys who want to practice in the 26 states that filed suit to take ethics classes.

“With these outrageous demands, Judge Hanen has unfairly and unnecessarily dragged a group of blameless individuals into this politically driven lawsuit, potentially compromising their privacy and safety with no legal justification,” Karen Tumlin, the National Immigration Law Center’s legal director, told reporters during a conference call.

[…]

The attorneys for the undocumented immigrants said they filed their own request directly to the Fifth Circuit because they are not parties in the original suit and because there is a time factor to consider.

“There’s just not enough time to really get relief in any other way except through a petition like this one,” said Omar Jadwat, a senior staff attorney with the ACLU Immigrants’ Rights Project.

See here and here for the background. A copy of the writ of mandamus is here, and a copy of the emergency motion for a stay is here. I don’t know what the legalities are for this, but I believe the plaintiffs are right on the merits and I am rooting for them to succeed. A statement from the ACLU on behalf of the petitioners is beneath the fold.

(more…)

Justice Department asks Judge Hanen to reconsider his last order

Can’t hurt to ask, I guess.

The Obama administration has asked a Brownsville-based judge to rethink an order that requires the federal government to turn over the private information of thousands of undocumented immigrants.

The May 19 order from U.S. District Judge Andrew Hanen asserted that the federal government’s attorneys intentionally misled the court during proceedings over the Obama admiration’s controversial executive order on immigration, known as Deferred Action for Parents of Americans and Lawful Permanent Residents. The court order included instructions for the federal government to provide Hanen a list of the immigrants who benefited prematurely from DAPA.

But in a filing Tuesday, the federal government’s attorneys said providing that list would jeopardize the faith the American people have in one of the government’s largest institutions.

“Requiring (Department of Homeland Security) to produce ‘all personal identifiers’ and ‘all available contact information’ for approximately 50,000 individuals by June 10, 2016, could undermine public trust in DHS’s commitment to protecting the confidential information contained in immigration files and will create a significant burden,” the filing states.

See here for the background. I have no idea how likely a response like this is to sway a judge, much less one who isn’t particularly friendly to your side. But if the point of the order was to get the Justice Department’s attention and change behaviors that the judge found objectionable, then perhaps this is offered as evidence that it had that effect. I guess we’ll find out if that was enough. Think Progress and Daily Kos have more.

Judge Hanen’s bizarre order

WTF?

A federal judge with a history of anti-immigrant sentiment ordered the federal government to turn over the names, addresses and “all available contact information” of over 100,000 immigrants living within the United States. He does so in a strange order that quotes extensively from movie scripts and that alleges a conspiracy of attorneys “somewhere in the halls of the Justice Department whose identities are unknown to this Court.”

It appears to be, as several immigration advocates noted shortly after the order was handed down, an effort to intimidate immigrants who benefit from certain Obama administration programs from participating in those programs, lest their personal information be turned over to people who wish them harm. As Greisa Martinez, Advocacy Director for United We Dream, said in a statement, the judge is “asking for the personal information of young people just to whip up fear” — fear, no doubt, of what could happen if anti-immigrant state officials got their hands on this information. Or if the information became public.

The judge is Andrew Hanen, who conservative attorneys opposed to President Obama’s immigration policies appear to have sought out specifically because of his belief that America does not treat immigrants with sufficient hostility.Texas v. United States was filed shortly after President Obama announced policy changes that would permit close to 5 million undocumented immigrants to temporarily work and remain in the country. As the name of the case suggests, the lead plaintiff is the State of Texas, yet the Texas Attorney General’s office did not file this case in Austin, the state’s capitol. Instead, they filed it over five hours away in the town of Brownsville.

At the time, only one active federal judge, Judge Hanen, sat in Brownsville, so the attorneys’ decision to file their case nearly 300 miles away meant that it was highly likely that the case would be assigned to a judge that once accused federal officials of engaging in a “dangerous course of action” because they permitted an undocumented mother to be reunited with her child without facing criminal charges. Hanen later issued a nationwide order halting the Obama administration’s new policies.

[…]

The legality of DAPA and this expansion of DACA (but not the underlying DACA program itself) are now before the Supreme Court.

Hanen’s doxing order arises out of a third, less consequential policy change described in the DHS directive. Before the directive, DACA beneficiaries had to reapply every two years. Under the directive, they need to reapply every three years.

At an early stage in the litigation, the plaintiffs’ attorneys and Judge Hanen asked Justice Department lawyers whether aspects of the directive would be implemented prior to a January hearing date, and the DOJ attorneys responded that “I really would not expect anything between now and the date of the hearing.” The Justice Department made similar statements at later points in the case. At that time, DAPA and expanded DACA were not yet being implemented, but the shift from two years between DACA renewals to three years was already under way.

Hanen claims that the Justice Department attorneys intentionally deceived him by not mentioning the fact that the amount of time afforded to DACA beneficiaries had changed. The Justice Department claims that, at most, they misunderstood what Hanen was asking for. They believed that Hanen was only asking about the dates when DAPA and expanded DACA would be implemented, and not about the shift from two to three years. This distinction matters because, while deliberately misleading a court is a very serious ethical breach, misunderstanding a question is not.

In a brief filed in Hanen’s court, the Justice Department attorneys offer their version of events.

[…]

Hanen’s order calls for two sets of sanctions against the Justice Department. The first requires the government to turn over the personal information — including addresses — of every single one of the more than 100,000 DACA beneficiaries that received a three-year renewal or approval. Though Hanen will initially keep this information under seal, he adds that he shall “on a showing of good cause . . . release the list or a portion thereof to” state authorities in one of the 26 states that sued the administration to halt DAPA and expanded DACA.

Additionally, Hanen ordered potentially hundreds of attorneys to attend remedial courses, regardless of whether those lawyers have ever appeared in his courtroom or even set foot in the state of Texas. Under his order, every single lawyer “employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States” must “annually attend a legal ethics course.” The Attorney General must appoint someone to provide annual reports to Hanen for five years, which must include “the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended.” And, in case that’s not enough, he also ordered the Attorney General herself to “report to this Court in sixty (60) days with a comprehensive plan to prevent” the alleged misconduct that Hanen believes happened in his courtroom “from ever occurring again.”

The Justice Department will almost certainly appeal Hanen’s order to the United States Court of Appeals for the Fifth Circuit or, if necessary, the Supreme Court. Unfortunately for DOJ, the Fifth Circuit is a conservative court and the Texas case has twice wound up in front of an especially conservative panel of Fifth Circuit judges. One of these judges has his own history of issuing questionable sanctions against the Obama administration.

Nevertheless, Hanen’s order is sufficiently unusual that it may cause even these judges to blink. Judges, after all, are lawyers. And many of them know what it is like to be on the receiving end of a judge who seems to have it in for you.

See here and here for lots of background. I have no idea what to make of this, but good Lord this judge is a mess. Daily Kos has more.

The DAPA arguments at SCOTUS

Hard to say how this will go.

A shorthanded Supreme Court heard a Texas-led challenge against President Barack Obama’s 2014 immigration plan Monday with sharp questions about whether the state could bring the case to begin with and if the president had overstepped.

The eight justices appeared largely divided with the four liberal justices asking questions that seemed to indicate it supported the president’s plan while the four conservative justices questioned the limits of his executive authority.

[…]

Chief Justice John Roberts is considered a contender to side with the four liberal judges in deciding that Texas isn’t able to bring the suit in the first place because it can’t prove it will suffer as a result of the program, necessary for it to sue in federal court.

Texas said it would lose money if it is required to provide driver’s licenses to the nearly 600,000 immigrants who would be eligible for a provisional work permit through the president’s plan. The state subsidizes the document by about $130.

But U.S. Solicitor General Donald Verrilli argued Monday that Texas could simply change its policy and not offer these immigrants licenses or choose not to offset the cost of the documents.

Roberts, who has taken a narrow position on so-called standing in the past, noted that not granting licenses to certain immigrants with work authorization when others with a similar status have them could be considered discriminatory, putting Texas in a tough spot.

He asked Verrilli whether the injury Texas argues it might suffer is similar to a 2007 environmental case in which Massachusetts sued the Environmental Protection Agency about its refusal to regulate vehicle emissions linked to climate change.

“There wasn’t a way for Massachusetts to avoid the effects of climate change but there is a way here,” Verrilli said, because Texas isn’t required to discount the license.

Massachusetts had argued that rising seawater, a result of global warming, would erode its coastline and hurt the state, giving it sufficient claim to sue the federal government. The state prevailed but Roberts led the court’s conservative dissent, arguing Massachusetts could not prove it was hurt by the government’s policy.

Monday Justice Stephen Breyer noted that the state’s main argument that it would be harmed is that it would lose money.

“We can’t just let you sue on the basis that you as a taxpayer would pay more money,” he said. “Because if we do, taxpayers from all over the country would sue” about their unhappiness with any number of federal programs.

See here for more. TPM‘s report on the oral arguments sounded a pessimistic note for the feds, while Daily Kos and Think Progress were more buoyant. The key question seems to be whether the states have standing to sue. If SCOTUS rules that they don’t, then this is over and the program can be implemented immediately, though at this point it’s unclear how much effect it may have, given its uncertainty past November. If they do have standing, then the case goes back to the district court for a hearing on the merits (which won’t go well for the feds, given the original judge and his ruling to suspend the program), and nothing will get resolved for several years. That may also open the floodgates for other litigation like this. A 4-4 tie is a win for the plaintiffs, since the lower courts ruled in their favor. The Obama administration needs at least one conservative judge to buy into its arguments about standing. The Trib, SCOTUSBlog, Daily Kos, Think Progress, and Trail Blazers have more.

DAPA’s day at SCOTUS

Another day, another huge Supreme Court case involving Texas, a big policy item from President Obama at stake, and the fate of millions of people hanging in the balance.

The Supreme Court on Monday will hear the matter, one of its most significant this term, and a decision could be the most important related to immigration in decades. At stake is the extent of power the executive branch can wield and the fate of about 4 million immigrants potentially eligible for the program, most of whom have lived here illegally for more than 10 years.

It’s put Texas in the peculiar position of arguing against an initiative that essentially already exists and that as a policy once held bipartisan support. If the state prevails, it could signal the end of Obama’s original youth permit program too. It all underscores how far the pendulum against immigration reform has swung since President George W. Bush pushed a comprehensive overhaul nearly a decade ago.

Texas Attorney General Ken Paxton said the state’s lawsuit is not about immigration per se but whether the president has the authority to make a sweeping policy change that Texas argues is at odds with Obama’s obligation to enforce immigration law.

“This is fundamentally about the constitution and the future of this country, not just about immigration law or a Democratic president but about what can a president, no matter what his or her philosophy is, do,” Paxton said. “Do they have the ability now under the constitution to make law and step into the role Congress traditionally had?”

The Obama administration argues that it’s not in fact making new law, but prioritizing whom it should deport as mandated by Congress itself. Legislators allocate about $6 billion a year to enforce immigration, enough to deport roughly 300,000 immigrants, a fraction of the 11 million in the country illegally, Justice Department lawyers said in their brief filed last month with the Supreme Court.

At issue in both programs – deferred action for childhood arrivals, known as DACA, and deferred action for the parents of Americans, or DAPA – is a practice the government has employed as far back as the 1960s. But it was first publicly revealed when the Nixon White House tried to deport Beatles frontman John Lennon in 1972.

[…]

Texas doesn’t dispute the administration’s right to grant deferred action. But it contends the president’s programs allow a mass group of immigrants to apply, who are almost all approved. Typically deferral is granted on a case-by-case basis for people already in deportation proceedings. The state argues the initiatives improperly grant immigrants a “lawful presence,” while the administration contends the permits can be repealed at any time and their recipients deported.

In its brief, the government said more than 20 such policies for large classes of people have been enacted since the 1960s, including for Cubans after the island’s revolution and more than 1.5 million spouses and children of immigrants who were granted residency under President Ronald Reagan’s 1986 reforms. It also cites its 2012 youth program, which is similar in scope, but was not challenged by Texas.

Paxton said he didn’t know why the state didn’t argue the constitutionality of DACA.

It’s an interesting exclusion, given that the legal arguments for both DACA and its 2014 spin-off for parents, DAPA, are basically identical, said Stephen Legomsky, a law professor at Washington University and former chief counsel to U.S. Citizenship and Immigration Services.

“It’s hard for me to think of any ground striking DAPA that wouldn’t apply to DACA,” he said. “So why not challenge DACA? They might have worried the court wouldn’t want to strike down such a popular program. So they think go after DAPA and if they win, then they have a nice precedent to go after DACA.”

See here and here for some background. There will be a ton of coverage of the arguments and the Justices’ reactions to them and all that, and I’ll post about that tomorrow. This is just a placeholder to remind you that today is the day for this, and what it’s all about as we wait.

UPDATE: The Trib has a nice comprehensive timeline of events in this case.

Texas AG files SCOTUS brief against Obama immigration plan

It’s what he does.

Texas Attorney General Ken Paxton filed a brief with the U.S. Supreme Court Monday arguing against President Barack Obama’s plan to shield from deportation nearly 5 million people here illegally and give them temporary work permits.

“The Obama Administration has consistently demonstrated disregard for the rule of law in asserting that it has the legal authority to unilaterally change the immigration policy of the United States,” Paxton said in a statement. “Rewriting national immigration law requires the full and careful consideration of Congress, not the political will and assertion of one person. As the president himself said numerous times, he alone does not have the authority to grant millions of unauthorized aliens a host of benefits, including work authorization.”

[…]

In the brief Monday, Paxton’s office reiterated its arguments, saying that at least 500,000 immigrants in the state would be eligible for the driver’s licenses and, at a cost of $130 a license, it could lose “millions of dollars” even if just a fraction of them applied. Advocates of the plan have argued that the state would also see millions of dollars in additional tax revenue as immigrants with work permits have to pay taxes and tend to be paid more.

In the brief, Paxton also argued that the president should have sought public comment because “public interest in providing input on one of the largest immigration policy changes in the nation’s history is extraordinarily high.” He also argued that the program in effect is a mandate and not discretionary according to each application and thus requires Congressional approval.

See here for the background. I have always found the “but we have to provide them with drivers licenses!” argument to be weak. I’m pretty sure if you figured out just how much these folks contribute to the state in sales taxes alone, it would more than cover that bill. And if you tote up the full economic contributions these folks make to the economy, which Texas would lose if they managed to prevail in this stupid lawsuit, it’s way more than that. As for the Scalia Factor, since the Fifth Circuit upheld the lower court’s ruling against the Obama executive order, we’ll need the Good Anthony Kennedy to be in the courthouse for a favorable outcome. Here’s hoping.

Turner files amicus brief for Obama’s immigration executive action

Good.

Mayor Sylvester Turner

Mayor Sylvester Turner

The city of Houston has added its voice to a friend of the court brief in the looming U.S. Supreme Court showdown over President Obama’s late-2014 executive actions on immigration, Mayor Sylvester Turner said Tuesday.

Calling the president’s decisions “common sense and humane,” Turner urged the court to overturn lower court injunctions that have blocked the implementation of Obama’s plans.

“A favorable ruling would remove the fear of deportation and separation that more than 200,000 eligible immigrants in the greater Houston metropolitan area live with every day,” the mayor said. “This lawsuit is bad for the economy, hurts families and has stalled desperately needed changes to the federal government’s immigration policies. These are individuals who are business owners, customers, students and parents who simply want a brighter future.”

See here for the background, and here for the Mayor’s press release, which touts the city’s Office of International Communities and Refugee Affairs for folks who are looking to achieve citizenship and need a little help.

Also getting into the amicus game are Congressional Democrats.

More than 200 Democrats are backing a new amicus brief that will be filed later Tuesday with the high court, arguing the controversial actions Obama took in November 2014 that could defer deportations and grant work permits to more than 4 million immigrants in the United States illegally are both legal and constitutional.

The renewed effort from Democrats comes as House Republicans are also mulling whether to get involved in the high-stakes case. Speaker Paul Ryan (R-Wis.) said last week that the House will vote on a resolution to allow lawmakers to file an amicus brief in Texas vs. United States, calling Obama’s executive actions a “direct attack on the Congress’ Article I powers under our Constitution.”

Now, Democrats are quickly trying to counter the GOP’s offensive against Obama’s actions.

The new amicus brief from Democrats also delves deeper into a new legal question that the Supreme Court will consider: whether Obama violated the “Take Care” clause, which essentially calls on the president to “take care” that laws are faithfully executed.

Democrats are insisting that Obama is not violating the “Take Care” clause because the executive actions are well within the authority of Homeland Security Secretary Jeh Johnson, whose sprawling agency oversees immigration matters.

Because Congress sets aside a finite amount of money for deporting undocumented immigrants every year (that figure is generally estimated at 400,000 immigrants annually, while there are an estimated 11 million undocumented immigrants in the United States), Homeland Security officials have to set priorities for who to deport with those limited resources. Obama’s executive actions lay out such priorities, and because Democrats believe doing so is within Johnson’s authority, it “by definition reflects the faithful execution of the law,” Democrats say.

The executive action “reflects the decision by [Johnson], acting within finite congressional appropriations insufficient to remove every removable noncitizen, to channel DHS’s enforcement efforts according to a set of removal priorities,” the Democratic lawmakers wrote in a draft of the brief obtained by POLITICO in advance of its release. “That is not a deviation from the obligation to faithfully execute the laws; rather, it is a fulfillment of it.”

Oral arguments are scheduled for April 18. I’m sure there will be plenty more filings before then.

The Scalia effect on current cases

The Trib highlights a few cases pending before the Supreme Court that could be affected by the death of Justice Antonin Scalia.

Antonin Scalia

Texas abortion law

On March 2, the court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, which challenges Texas’ 2013 abortion law. Beyond deciding the constitutionality of a law that could shut down about half of the state’s 19 remaining abortion clinics, the Texas abortion case gives the Supreme Court an opportunity to clarify how far states can go in restricting abortion.

In 1992, the court ruled that states can impose abortion restrictions as long as they do not place an undue burden on a woman’s ability to obtain an abortion.

Lower courts across the country have disagreed, however, on what constitutes an “undue burden.” Activists on all sides are hoping the high court will provide a clearer definition in its decision in the Texas case. That case centers on the state’s requirement that abortion clinics meet hospital-like ambulatory surgical center standards — which include minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications. In June, a three-judge panel of the U.S. 5th Circuit Court of Appeals largely upheld the new abortion restrictions, saying the new law does not impose an undue burden on a majority of Texas women seeking abortions.

Justice Anthony Kennedy could be the swing vote. If he sides with the conservatives on the court, the resulting 4-4 tie would affirm the lower court ruling.

The lower court also granted the relatively remote Whole Woman’s Health in McAllen an exemption to some narrow elements of the ambulatory surgical center requirements and from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

Barring a tied vote, a decision in the Texas case could also determine the constitutionality of restrictions in place in other areas of the country. As of November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those states, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities. Those restrictions were not in effect in two of those states.

Immigration

The high court also agreed to hear the state’s case against the Obama administration’s controversial executive action on immigration that was announced in November 2014.

Known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, the action would shield more than 4 million undocumented immigrants in the country from deportation proceedings and allow them to apply for three-year work permits. Lower courts have ruled to halt the policy three separate times.

The Supreme Court agreed to hear the case in January but has yet to schedule arguments.

[…]

UT-Austin’s affirmative action policy

The death of Scalia cast uncertainty on many important cases before the Supreme Court, but probably won’t have a major impact on the decision in Fisher v. the University of Texas at Austin, which is a case about the constitutionality of affirmative action.

Justice Anthony Kennedy is still the likely swing vote, just as he was before Scalia died.

Abigail Fisher, who is white, contends she was unconstitutionally denied admission into UT-Austin in 2008 because of her race. UT-Austin considers the race of a small portion of its applicants, and black and Hispanic students often get a slight advantage in that pool of admissions. If Fisher wins her case, UT-Austin might be unable to consider the race of its applicants in the future. A broad ruling against UT-Austin could even end affirmative action nationwide.

Scalia, a longtime opponent of affirmative action, was almost certain to vote against UT-Austin. He was in the dissent in Grutter v. Bollinger in 2003, when the Supreme Court upheld the practice of affirmative action in a limited way.

[…]

Redistricting

Finally, the justices heard arguments last year on a Texas case that questions a basic idea in American election law. In Evenwel v. Abbott, the plaintiffs argue that their voting power is diluted by the way Texas draws its state legislative districts, saying those lines should be based on the number of eligible voters in each district and not on population.

Congressional districts are based on population, as directed in the Constitution. The Evenwel case challenges Texas Senate district lines; a decision allowing states to use eligible voters as a base could shatter current lines here and in other states that want to make the change, remaking the distribution of power in state legislatures. That decision is pending.

The court has already accepted those four cases, among others, but doesn’t have to do anything this term if the justices decide to change course.

If the justices don’t want to rule on a case they’ve already accepted, they can announce it was “improvidently granted,” which means lower court ruling holds, [Sanford Levinson, a constitutional law expert at the University of Texas at Austin] said. They can hold over any unheard cases they want until they have a ninth colleague, and they can rehear oral arguments with a ninth colleague if they want to wait or they think a ruling with a four-person majority would be too controversial.

“It certainly wouldn’t surprise me if they hold over some stuff where time really isn’t of the essence,” Levinson said. “You can make this argument of the election case [Evenwel]. If they hold it over, the world won’t come to an end.”

There’s a lot of good commentary out there about What This All Means, at least in the short term – see Think Progress, SCOTUSBlog, and Rick Hasen, for example. The main point to keep in mind is that in any case where SCOTUS winds up splitting 4-4, the ruling of the lower court would stand. From my perspective, that’s a good thing in some cases – Friedrichs being one example, Evenwel being another – and not so good in others, specifically Whole Woman’s Health and the DAPA case. In addition, in some cases that kind of result could also mean a split in the appeals courts. There are plenty of abortion restriction lawsuits out there, over laws similar to what Texas passed, and a number of other federal courts have struck them down. It’s not hard to imagine at least one appeals court upholding the lower court on those rulings, thus making laws like Texas’ legal in some states but not in others. Texas’ law is currently on hold thanks to SCOTUS, so one way to avoid this problem would be for the Court to delay hearing the appeal until they’re back at full strength. Or maybe the good Anthony Kennedy will show up and Texas’ law will get struck down on a 5-3 vote. Let’s just say that John Roberts has a lot to think about and leave it at that.

One other thing: Justice Scalia’s death has revived the idea of term limits for Supreme Court justices, an idea that has fairly broad support. Ted Cruz is a proponent of the idea, though as is always the case with Cruz, he has bad reasons for doing so. I’m perfectly fine with the idea of limiting Justices to 18 years on the bench. It’ll take a Constitutional amendment, so the odds of it happening are infinitesimal. but if it gains momentum that will be okay by me. For what it’s worth, prior to Scalia’s death, there were five Justices who had already served more than 18 years, and three of them were appointed by Republican Presidents: Scalia, Kennedy, and Clarence Thomas, along with Ruth Bader Ginsburg and Stephen Breyer. Make of that what you will.

SCOTUS to hear immigration executive order case

It’s on.

The Supreme Court on Tuesday said it will decide whether President Obama has the authority to declare that millions of illegal immigrants be allowed to remain and work in the United States without fear of deportation.

The court will probably hear the case in April, with a ruling before it adjourns in June. It provides the last chance that the administration would have to implement the program, announced by Obama in 2014, before he leaves office next January. The program would affect nearly 4 million people.

Obama’s program, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would allow illegal immigrants in those categories to remain in the country and apply for work permits if they have been here for at least five years and have not committed felonies or repeated misdemeanors.

The administration says the program is a way for a government with limited resources to prioritize which illegal immigrants it will move first to deport.

But the executive action, taken after Congress failed to enact comprehensive immigration reform, was blocked by lower courts when Texas and 25 other Republican-led states sued to stop it.

[…]

In the administration’s petition to the court, U.S. Solicitor General Donald B. Verrilli Jr. said that the lower courts had blocked “a federal immigration enforcement policy of great national importance” and that they did so “in violation of established limits on the judicial power. If left undisturbed, that ruling will allow states to frustrate the federal government’s enforcement of the nation’s immigration laws.”

Verrilli said that lower-court rulings “will force millions of people — who are not removal priorities under criteria the court conceded are valid, and who are parents of U.S. citizens and permanent residents — to continue to work off the books, without the option of lawful employment to provide for their families.”

See here, here, and here for some background. The NYT explains why the timeline is so important:

If the Supreme Court upholds Mr. Obama’s actions, the White House has vowed to move quickly to set up the DAPA program and begin enrolling immigrants before his successor takes over early next year. Democratic presidential candidates have said they will continue the program, but most of the Republicans in the race have vowed to dismantle it and redouble immigration enforcement.

The administration, fearing that the program could remain frozen through the balance of Mr. Obama’s presidency, had asked the court to move quickly. On that point, at least, the court agreed, and it now appears that the case will be argued in April and decided by the end of June.

To say the least, the Court has a crowded and consequential docket for its spring term. As always, we hope for the best. SCOTUSBlog, the Trib, the Chron, Think Progress, United We Dream, SEIU Texas, and Kevin Drum have more.

SCOTUS denies 30-Day Extension in Immigration Case

Good.

JustSayNo

The Supreme Court on Tuesday granted twenty-six states an extra eight days to file their response to the Obama administration’s appeal in defense of its broad new immigration policy. That extension — considerably less than the added thirty days the states had sought — makes it more likely that the case, United States v. Texas, will go before the Justices this Term.

The Court did not release a separate order on the issue, but Supreme Court Clerk Scott Harris simply notified the lawyers in the case that the normal thirty days for a brief in opposition would be extended by eight days — until December 29.

[…]

The states opposed to the new delayed-deportation policy had asked the Court to give them twice the usual time to respond. The administration, however, was opposed to that, but it told the Court that it would not oppose an eight-day extension, which is what the Court chose to grant.

The action by the Justices is not an agreement to review the case. That will be decided only after the preliminary filings are in.

Solicitor General Donald B. Verrilli, Jr., had told the Court on November 24 that, if the states were given an extra eight days and they actually did meet that deadline, the government would be willing to consider forgoing its right to file a reply brief. That would mean, Verrilli said, that the Court could consider the case at its private Conference, scheduled for January 15. In turn, he added, the Court could decide the case this Term “in the ordinary course if the Court grants review.”

If the Court were to put the case on the January 15 list, and agree at that time to decide it, it could be heard in April and decided before the summer recess. Verrilli had said that, if the schedule got delayed by a longer extension for the states’ filing, the case even if granted would probably not be heard until a special sitting in May. The Court normally finishes hearing cases in a Term in April, and does not like to go beyond that schedule.

See here, here, and here for the background. I’m pleased by this and hope it leads to the April hearing that the feds have requested. A statement from the Texas Organizing Project is beneath the fold, and the Trib and ThinkProgress have more.

(more…)

Feds respond to request for delay of immigration appeal

Counterpoint:

JustSayNo

It was the federal government’s move Tuesday, and the U.S. Department of Justice asked the court to reject Texas’ request for a 30-day extension to file its brief in the case, but says it is open to an eight-day delay if the response is “physically on file” at that time.

A full delay could mean the high court doesn’t render a final decision on the program — known as Deferred Action for Parents of Americans and Lawful Permanent Residents — until June 2017, U.S. Solicitor General Donald B. Verrilli Jr. said in a letter to Supreme Court Clerk Scott S. Harris. That would be more than two years after the president announced the policy that would protect more than four million undocumented immigrants from deportation proceedings and allow them to apply for three-year work permits.

[…]

It’s unclear when the high court will decide on the extension, but the justice department said it’s prepared to press on should the extension be granted.

“We note, however, that should state respondents’ request for a 30-day extension be granted, we anticipate filing a motion for expedition and a May argument session to permit the case to be heard this Term,” Verrilli wrote.

See here, here, and here for the background. Not much to add here. I trust we will know soon enough what the answer is, because if we’re left to wait for a response then won’t be anything to respond to. A statement from the Texas Organizing Project is beneath the fold, and the Current and SCOTUSBlog, which has a copy of the feds’ response, have more.

(more…)

State wants delay on immigration appeal

Of course it does.

JustSayNo

The Texas Attorney General’s office is asking the U.S. Supreme Court for an extra 30 days to respond to the Obama Administration’s appeal of lower court rulings that have blocked controversial changes in immigration enforcement.

The move could affect the timing of a final decision on the program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, which has been blocked for more than a year since the state of Texas filed suit to halt the program.

[…]

The state’s request, if granted, would give the office of Attorney General Ken Paxton until Jan. 20, 2016 to respond to the White House’s filing. Advocates of the president’s program have already expressed concerns that a final determination by the high court could come as late as June, about six months before the president leaves office. It’s unclear what the timeline would be if the extension is granted.

The justice department did not immediately respond to a request for comment on Monday, but in Friday’s request the agency argues the case “warrants immediate review.”

In the state’s request for an extension, Texas Solicitor General Scott Keller says the state has “numerous pressing deadlines in other cases” before the Supreme Court that were pending before the White House filed its petition.

Keller also argues that the White House could have asked the high court to take the matter up sooner.

“After the district court and court of appeals months ago denied petitioners’ motions to stay the preliminary injunction pending appeal, petitioners declined to seek a stay from this Court,” he wrote.

See here and here for the background. The complaint that the Obama administration has slowed things down is pretty ridiculous; this appeal was filed less than two weeks after the Fifth Circuit issued its ruling, and there was no request made for an en banc review. If you really want to complain about the timing, take it up with the two judges that wrote the majority opinion, as their dissenting colleague criticized them for taking so damn long to rule. I’m rooting for SCOTUS to deny this request.

Obama appeals immigration order ruling to SCOTUS

As expected.

JustSayNo

The Obama administration on Friday asked the United States Supreme Court to review a federal appellate court’s ruling that struck down the president’s controversial immigration program.

The request comes exactly one year after the program, called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, was announced by the president. It would have allowed more than 4 million undocumented immigrants nationwide to apply for three-year renewable work permits and reprieves from deportation proceedings.

The petition — which the Obama administration said earlier this month it planned to file — states the case “warrants immediate review” and echoes the sense of urgency advocates of the program have expressed for months. If the high court decides to review the case, a ruling could come as late as June, roughly six months before Obama leaves the White House.

See here for the background. It’s hard to imagine SCOTUS not wanting to take this, it’s mostly a question of whether they take it for the next session, so as to have a ruling before the next Presidential election. That’s what I’m hoping for. Not much more to say at this point beyond that. A statement from the Texas Organizing Project is beneath the fold, and Daily Kos has more.

(more…)

Fifth Circuit denies Obama immigration executive order appeal

Alas.

JustSayNo

A three-judge panel of the U.S. 5th Circuit Court of Appeals has once again ruled against the Obama administration’s controversial immigration program, upholding a lower court’s injunction barring the plan from taking effect while awaiting the outcome of a full trial on the lawsuit’s underlying arguments.

The policy, called Deferred Action for Parents of Americans and Lawful Permanent Residents, was announced in November 2014 and would have allowed for more than 4 million undocumented immigrants nationwide to apply for three-year renewable work permits and reprieves from deportation proceedings.

[…]

Judge Jerry E. Smith, who was appointed by former President Ronald Reagan, and Judge Jennifer Elrod, who was appointed by former President George W. Bush, voted to deny the request. Judge Carolyn Dineen King, appointed by former President Jimmy Carter, cast the dissenting vote.

Attorneys for the state of Texas had argued that in addition to circumventing Congress and abusing his authority to enact immigration laws, the president’s order would cause the state harm in the cost of providing undocumented immigrants driver’s licenses and other benefits.

Smith and Elrod agreed.

“The states have satisfied the other requirements for a preliminary injunction,” the opinion states. “DAPA beneficiaries would be eligible for driver’s licenses and other benefits, and a substantial number of the more than four million potential beneficiaries—many of whom live in the plaintiff states—would take advantage of that opportunity.”

The panel also rejected the administration’s argument that halting the program would harm the administration’s ability to prioritize its resources.

“Separately, the United States postulates that the injunction prevents DHS from effectively prioritizing illegal aliens for removal. But the injunction ‘does not enjoin or impair the Secretary’s ability to marshal his assets or deploy the resources of the DHS [or] to set priorities,'” the opinion states.

The next step for the administration will likely be an appeal before the U.S. Supreme Court. But it’s unclear whether the high court, which began its current term last month, has enough time to consider the case.

“In this case the time line has always been a critical element of the outcome since it is a presidential discretionary order,” Muzaffar Chishti, an attorney and director of the Migration Policy Institute’s office at New York University School of Law, told the Tribune in October. “Whether it can happen during the life of this presidency has always been the dominant question.”

Chishti added that November might be the last month the Obama administration could ask the high court to consider the case. If it does, a ruling could come as late as June.

See here, here, and here for some background. The small bit of good news out of this is that there’s some (though not much) time for this ruling to be appealed to SCOTUS for their spring docket, which would be the last chance for this to be decided while President Obama is still in office. (In fact, the Obama administration has already said that it will appeal to SCOTUS.) After that, whatever happens will be up to the next President and what Congress and the courts allow. A statement from the Texas Organizing Project is beneath the fold, and the Associated Press, Think Progress, the Washington Post, and the Press have more.

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I’m not the only one who thought the state’s response to the birth certificate lawsuit was specious

Actual legal experts didn’t think much of it, either.

The state of Texas can’t hide behind sovereign immunity to escape a lawsuit for denying birth certificates to U.S. citizen children of undocumented immigrants, the director of the University of Texas’ Transnational Worker Rights Clinic said Tuesday.

That state’s claim of immunity is mere “boilerplate,” said Bill Beardall, who also serves as executive director of the Equal Justice Center, and the lawsuit against the Department of State Health Services should proceed.

“The state filed a standard boilerplate response that states and state officials always file in these lawsuits,” Beardall said. “This is a form of discrimination.”

[…]

While some sovereignty claims have merit, Beardall said, U.S. Supreme Court case law includes precedents that private parties can sue state officials in their official capacities to enforce federal rights.

Michael Gerhardt, a professor of constitutional law at the University of North Carolina’s School of Law, said states often reply to lawsuits with an 11th Amendment argument. “It doesn’t necessarily mean it’s illegitimate, but it also doesn’t necessarily have merit,” he said.

Instead, it could be a part of what he calls the state’s “rich judicial history” that could influence how the case moves forward. He cites specifically Plyler v. Doe, the case where the Texas Legislature’s attempt to deny undocumented students access to public education was rejected by the Supreme Court. In essence, Gerhardt said, the court decided that the children should be admitted and not punished based on something their parents had done.

“It’s not hard to extrapolate from that that someone born in this country [is] going to be, presumably, a U.S. citizen,” he said. “In this case you’re talking about a federal right, and states cannot deny a federal right.”

See here and here for the background. The plaintiffs will file their response shortly, and the state will then respond to that response. I presume we’ll get a better idea of what their real argument is then. In the meantime, more plaintiffs are expected to join the suit. I suspect there’s no shortage of them to be found.

Fifth Circuit hears immigration ruling appeal

We’ll see, but as always with this court it is better to expect the worst and hope to be pleasantly surprised.

JustSayNo

Noise from hundreds of chanting immigration activists outside a federal appeals court building competed at times Friday with lawyers arguing inside over President Barack Obama’s proposal to shield an estimated 5 million people from deportation who are in the U.S. illegally.

“The three judges felt the vibrancy and power of our movement,” said Marielena Hincapie, of the National Immigration Law Center, speaking to the crowd that rallied while a panel of the 5th U.S. Circuit Court of Appeals heard the case.

Demonstrators gathered on the steps of the federal courthouse with permission from authorities, their chanting mixed with speeches in English and Spanish and music from a brass band. Activists criticized Republican resistance to the Obama program and called for policies that let immigrants stay and work in the country.

[…]

Scott Keller, representing the Texas Solicitor General’s Office, argued that the administration was doing more than simply deferring action. He said the plan would effectively grant a new legal status – legal presence – to people in the country illegally, putting them in line to get permission to work and benefit from Social Security.

Judge Carolyn Dineen King seemed skeptical of that argument at times, noting that deferred action wouldn’t change the fact that someone entered the country illegally and would not protect them from deportation under any circumstance.

“Based on the unlawful thing that they did to begin with, you can turn them out tomorrow,” she said.

Arguments also settled on whether Texas and the states even have the power to challenge the federal executive branch’s authority to regulate immigration. Arguments on that issue largely have centered on the costs Texas would incur by having to issue driver licenses to DAPA beneficiaries – an injury, the state argued – that gave them the right to sue.

Two of the judges on Friday’s panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on a panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal outcome. In that opinion, they disagreed with government contentions that Texas had no standing.

They also ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act, which the Justice Department disputes.

See here and here for some background. The previous order from the court on the injunction suggested there may be some cause for optimism, but the hearing itself didn’t appear to support that. Complicating things further, while this lawsuit was brought by several states and has halted the immigration plan nationwide, several other states and dozens of cities, including Houston, have filed amicus briefs on behalf of the administration. There’s no indication when the Fifth Circuit may rule, and it seems likely this could stretch out into the term of the next President, especially if it goes to SCOTUS. Just another reason why 2016 matters, since quite a few of the candidates out there would be more than happy to drop the appeal. The Trib and BOR have more.

Eltife not running for re-election

He will be missed.

Sen. Kevin Eltife

After 23 years in elected office, state Sen. Kevin Eltife, R-Tyler, said he will not run for re-election in 2016 to devote more time to family, friends, his work and his community.

Eltife said he’s loved every minute of his service in the Senate and is proud to have worked with fellow Senators and their staffs. But he said he did not want to hold a title or office without being 1,000 percent committed to the job and fighting for Senate District 1.

“After 23 years, I have to honestly say I need to take a step back, spend more time with my family and friends and recharge my batteries,” Eltife said during an Editorial Board meeting with the Tyler Morning Telegraph. “I will continue to be involved and volunteer at the local and state level to try to help others.”

Senators, both Republicans and Democrats, are hard-working, well-intentioned people who sacrifice time from their families and lives to try to make Texans’ lives better, he said.

“I’m going to stay plugged in,” he said. “I want to make sure northeast Texas voices are heard, and I don’t have to be in public office to do that.”

[…]

Eltife said when he arrived his primary focus in Austin was killing bad legislation that preserved local control. But he proved effective navigating bills and lending helping hands to other legislators.

He was instrumental in the creation of a pharmacy school and doctorate nursing program at the University of Texas at Tyler, expansion of craft beer brewers’ access to the market and, most recently, pass of a bill to give epileptics in Texas access to cannabis-based oils.

Those and other bills made a difference for his district, the state and Texans, he said.

Eltife said hearing the testimony from families of suffering epileptic children motivated him to pass the bill they saw as their only hope.

Eltife’s drive to make a difference many times has left him as a lone wolf legislator.

Eltife has been watching, not so quietly, as the state’s debt more than doubled since he arrived in Austin to about $46 billion from $17 billion.

The state used debt to fund road projects and meet needs he said could have been funded if legislators had been honest with Texans and used their political capital to make tough decisions.

Eltife said doing the right thing can mean going against the party line. He’s worked with both sides of the isle to move legislation he felt would benefit his district and the state.

Sen. Elife also spent a lot of time presiding over the Senate in the latter years of Lt. Gov. David Dewhurst’s tenure. By all accounts, the chamber ran a lot more smoothly with him wielding the gavel in Dew’s absence. The Trib adds on.

Several Republicans have already been mentioned as potential candidates for Eltife’s seat.

State Rep. David Simpson of Longview will announce later this month that he is launching a bid for the job.

“Advancing liberty and promoting prosperity in Texas will take conservative leaders who are ready to tell the truth,” Simpson said in a Sunday statement. “We are excited to announce our campaign for Senate District 1 and intend to officially launch our efforts on June 22.”

Rep. Bryan Hughes of Mineola, who was waiting to see whether Eltife would run for re-election, is also considered a likely contender for the post. Thomas Ratliff, the outgoing vice chairman of the State Board of Education, has said he would not rule out a run for the seat if Eltife gave it up. And Dennis Golden, a Carthage optometrist, has said he intends to run.

Eltife has often been a swing vote in a Texas Senate dominated by Republicans but governed by rules that give political minorities more power than their numbers would suggest. It takes consent from 60 percent of the state’s 31 senators to bring most proposals up for debate; issues that can only attract small majorities often languish as a result. And Eltife has found himself in the position of holding such proposals hostage more than once.

He was a rare Republican vote against repeal of the Texas Dream Act, which allows undocumented immigrants who graduate from Texas high schools and who have lived here for more than three years to pay in-state tuition at Texas colleges and universities. That repeal never made it to the full Senate. He opposed so-called sanctuary cities legislation that would require local police to enforce federal immigration laws. And he was a no vote on one of Lt. Gov. Dan Patrick’s pet bills, which would have allowed businesses to direct their taxes to scholarship funds for private school students.

Early in the legislative session that ended June 1, Eltife tried to tap the brakes on what he called “a bidding war” between the House and Senate over tax cuts, insisting that lawmakers should be using surplus funds for deferred maintenance, debt reduction and the like. The tax cuts went through, but so did some of what he had pushed for. By the end of the session, he declared himself satisfied with that partial victory.

This is a deep red district (Romney 72.1% in 2012), so it’s all a matter of the Republican primary. Thomas Ratliff would be fine if he ran. David Simpson is an odd duck, a teabagger but not quite cut from the same cloth as the rest of them. He’s just unpredictable enough to at least be a pain in Dan Patrick’s rear end on a regular basis. Bryan Hughes would be bad, and I can’t imagine anyone else would be any better. We’ll just have to see how it shakes out. The one thing I do expect is for there to be a lot of money spent on that campaign, mostly by outside groups. Good luck and best wishes for the next stage of your life, Sen. Eltife. Trail Blazers and RG Ratcliffe have more.

Possibly positive sign from the Fifth Circuit on immigration lawsuit appeal

From ThinkProgress:

JustSayNo

A string of bad luck for immigrants — and for the Obama Administration — might be coming to an end. On Thursday, a federal appeals court indicated that it is not bound by a previous decision that would make it very difficult for the administration to prevail in litigation challenging its immigration policies were this decision actually binding upon the court.

[…]

Judges Jerry Smith and Jennifer Elrod, both of whom were assigned to the three-judge panel hearing the request to stay Hanen’s decision, were among the six dissenters in that 2013 decision. They also formed the majority in a 2-1 decision refusing to stay Hanen’s order blocking the new immigration policies.

Smith and Elrod’s decision, however, focused on a narrow issue — whether to stay Hanen’s order pending further review by the Fifth Circuit. This July, the Fifth Circuit will decide whether to reverse Hanen’s order entirely, and it is likely that this matter will be heard by an entirely different panel of three judges. Nevertheless, the ordinary practice in a federal appeals court is that when a panel of judges publish a decision declaring a rule of law, that decision is binding upon future panels. So, under this ordinary rule, Judge Smith’s majority opinion denying a stay to the Obama administration would typically tie the hands of the new panel deciding whether to reverse Hanen’s order.

Except that, on Thursday, the Fifth Circuit sent a letter to attorneys in this case asking for briefing “addressing pertinent portions of the majority and dissenting opinions issued by” the panel that included Smith and Elrod. Significantly, however, the letter also advised the attorneys to be “mindful of the relationship between motions panels and merits panels as stated in” the court’s 1997 decision in Mattern v. Eastman Kodak Co.. That decision held that “a panel hearing the merits of an appeal may review a motions panel ruling, and overturn it where necessary,” and that “the merits panel must be especially vigilant where, as here, the issue is one of jurisdiction.”

So, to translate this somewhat arcane mix of legalize, the panel that will consider Hanen’s order in July is not bound by Smith and Elrod’s decision refusing to stay Hanen’s order. Indeed, this new panel even has the power to “overturn” Smith and Elrod’s decision.

That’s very good news for the the families hoping to benefit from Obama’s new policies, because Judge Smith’s opinion on behalf of himself and Judge Elrod could be simply devastating to the Obama administration’s legal arguments if it were binding on future panels, largely because it calls upon the appeals court to give an extraordinary degree of deference to Judge Hanen’s conclusions.

See here and here for the background. As the story notes, the panel for this appeal hasn’t been chosen yet – for all we know, Smith and/or Elrod could be on it – but the fact that this panel will not be bound by the previous panel’s ruling is good news. We could use some of that in this case. Daily Kos has more.

Immigration bills fail

Another thing to celebrate from this session.

As the sun begins to set on the 84th Texas Legislature, promises to enact tough immigration legislation remain unfulfilled. State Sen. Donna Campbell says she’s not giving up just because the last gavel is about to drop.

Campbell, a New Braunfels Republican, tried unsuccessfully to pass Senate Bill 1819, which would have eliminated a 14-year-old policy that allows non-citizens, including some undocumented immigrants, to pay in-state tuition rates at public colleges and universities.

“Unfortunately, it takes a [three-fifths] vote to bring a bill to the floor, and I was unable to find those final two to three affirmative votes once the bill passed out of committee,” she said in an email Saturday. “I am disappointed that we were unable to get this bill passed under the current body, but I have two years to change a couple members’ minds and try again next session.”

Republican lawmakers could take a similar conciliatory tone on another contentious issue, Senate Bill 185, by state Sen. Charles Perry, R-Lubbock. That bill sought to ban so-called “sanctuary cities” – the common term for local governments whose peace officers don’t enforce immigration laws.

The proposals seemed likely to pass, at minimum, the upper chamber in the early months of the session. The crush of unauthorized migration last summer in the Rio Grande Valley kept the issues at the forefront, and some GOP senators said during their campaigns that passing immigration legislation was a priority.

But two Republican senators, Kevin Eltife, R-Tyler, and Craig Estes, R-Wichita Falls, opposed the measures. Eltife said the issues were about local control; Estes said he feared both could have dire unintended consequences. Their opposition blocked both from going before the full chamber for a vote.

State Sen. Kirk Watson, D-Austin, said a coalition opposing the bills formed early, and it held “regardless of a great deal of pressure that was put on some people.”

“We spent time talking to individual members and talking to people outside the Capitol who in turn talked to members, so that we could be sure we weren’t making any assumptions about where someone might be on these bills, simply because of their party,” said Watson, chairman of the Senate Democratic Caucus.

See here for some background. I don’t expect this issue to go away despite the huge amount allocate in the budget for “border security” or the reality that immigration patterns have changed greatly in recent years. This will be a “crisis” in need of “immediate action” for as long as it has potency as an election issue. Stace has more.

Fifth Circuit panel declines to lift immigration executive order injunction

Alas.

JustSayNo

A federal appeals court in New Orleans has denied a request to lift an injunction blocking President Barack Obama’s executive action to protect millions of immigrants from deportation.

In a split decision, two of three judges on the 5th U.S. Circuit Court of Appeals panel ruled to leave the injunction in place, finding that Justice Department attorneys had not done enough to disprove that Texas and 25 other states suing the government lack standing.

The Texas-led lawsuit argues that Obama unconstitutionally sidestepped Congress in his November 20 plan on immigration to shield up to 5 million immigrants from deportation. And if his policies are allowed to take effect, attorneys for Texas argued that states would bear the financial burden of investment in health care, education and law enforcement.

[…]

“This ruling comes as no surprise,” said prominent immigration attorney David Leopold, and a former national president of the American Immigration Lawyers Association. “The 5th Circuit Appeals court is considered by many to be the most conservative in the county and the two judges who refused to lift the stay are among the most conservative judges on the court. The opinion is very narrowly tailored and focused on Texas’ claim that it will incur harm by increased drivers license costs and the states’ APA claims.”

See here and here for the background. Indeed, as noted in that second link, people assumed the fix was in when the three judges were named. The Obama administration can go to the full Court to reconsider, and there’s still the appeal of the original ruling itself, which is a completely separate matter. This ruling means that the injunction stays in place until that appeal is settled. It’s usually a bad sign for the side on the wrong end of the injunction, which is to say the Obama administration. I’m not going to give up hope just yet, though. A statement from the Texas Organizing Project is beneath the fold, and Daily Kos and the Current have more.

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Senate still trying to pass “sanctuary cities” and DREAM Act repeal

Time is running out on these bad bills, but as the man said, it ain’t over till it’s over.

After sitting idle in the Senate for more than a month, a controversial bill to eliminate in-state tuition rates for undocumented immigrants is back on the upper chamber’s calendar.

But it remains unclear whether the Senate has the votes to bring the measure up for debate.

Senate Bill 1819 by state Sen. Donna Campbell, R-New Braunfels, would do away with what has been standard policy in Texas since 2001: allowing non-citizens, including undocumented students, to pay discounted in-state tuition rates if they have lived in Texas for three or more years.

The proposal was originally placed on the Senate’s intent calendar on April 15 after an hours-long and emotional committee hearing — but it was taken off that calendar next day. During the first 130 days of the session, Senate rules require a bill to stay on the calendar for two days before being brought up for debate.

On Tuesday, the bill was back on the calendar along with another controversial measure, Senate Bill 185 by state Sen. Charles Perry, R-Lubbock. That proposal seeks to give local law enforcement expanded immigration enforcement powers.

SB 185 has been on and off the intent calendar several times since passing out of committee on April 13, a sign that the measure didn’t have support from 19 senators — the threshold needed to bring it up for a debate. The upper chamber’s 11 Democrats have stood united in their opposition to both measures, and at least two Republicans are firm against it.

See here for the background. The two Republican Senators that are helping hold these bills back are Sens. Kevin Eltife, who is not a surprise, and Craig Estes, who is. Without their resistance, these bills would have already passed the Senate thanks to the two thirds rule change. We appreciate the support, fellas. Hold fast, there’s not much farther to go. Stace, Texas Leftist, and the Chron’s Bobby Cervantes have more.