President Obama might need to turn to the Supreme Court to get his unilateral action sparing millions of illegal immigrants from deportation back on track.
Every attempt by the Obama administration to force the launch of his immigration programs has been stymied thus far, and reading the legal tealeaves, their prospects in the lower courts don’t look much better.
The White House has attempted to dismiss as a political stunt U.S. District Judge Andrew Hanen’s ruling last month halting Obama’s issuance of work permits for millions of illegal immigrants.
In the weeks since Obama’s power play was put on hold, the White House has expressed confidence that the U.S. Court of Appeals for the 5th Circuit in New Orleans would overturn Hanen’s decision.
However, the White House hasn’t received good legal news of late.
On Friday, that appeals court rejected the Justice Department’s attempt to lift the hold on Obama’s immigration programs. Though procedural, that development could bode poorly for when the court in New Orleans hears a broader appeal to the ruling, putting the brakes on a centerpiece of the president’s second-term agenda.
Though publicly bullish, Obama’s allies privately concede that the fate of Obama’s immigration plan could rest in the hands of Supreme Court justices.
“It looks daunting,” a former Obama Justice Department official told the Washington Examiner of the 5th Circuit. “You’re talking about probably the most conservative federal appeals court in the nation. To a certain extent, they have to expect [the Supreme Court] to get involved at some point.”
Obama has even alluded to a possible battle at the Supreme Court over the largest change to the immigration system in decades.
“The next step is to go to a higher court, the 5th Circuit. That will take a couple of months for us to file that and argue that before the 5th Circuit,” he said at a recent immigration town hall. “We expect to win in the 5th Circuit, and if we don’t, then we’ll take it up from there.”
Republicans say such a development is inevitable.
“We now have an exit sign,” Sen. John McCain, R-Ariz., said recently on CBS’s “Face the Nation.” “And that is the federal court decision saying that the president’s actions unilaterally are unconstitutional. And I think we’ve got a great argument to hand to the Supreme Court, where it will go.”
In lieu of a legal breakthrough, the White House is attempting to win the PR battle surrounding Hanen’s decision.
Though the administration’s ability to grant contested work permits has been halted, officials are still employing “prosecutorial discretion” to determine which illegal immigrants to deport. In other words, they won’t focus on people whose only crime was crossing the border illegally.
White House press secretary Josh Earnest circulated a letter Friday from 104 “legal scholars” calling the judge’s ruling “deeply flawed.”
And even Gov. Jerry Brown, D-Calif., in town for a meeting with White House officials on immigration, was dispatched to meet with reporters.
“President Obama has acted legally and constitutionally and also wisely,” the Democratic governor declared Friday.
He then went on to rip the GOP’s position on immigration, calling it “at best troglodyte, and at worst, un-Christian.”
Such rhetoric, though, will have little influence over the legal process.
Barring a surprising outcome in the lower courts, the Obama administration could be forced to ask the Supreme Court to look at it.
“I don’t know exactly how it will play out,” said the former Justice Department official. “Obama is definitely losing right now. They’re banking that if they lose the battle, they’ll win the war. We’ll see.”
