The legal drama surrounding President Obama’s executive action to shield millions of illegal immigrants from deportation and issue them work permits is robbing the White House of its greatest luxury in selling the overhaul: time.
Obama’s unilateral action on immigration — and much of his second-term agenda — is rooted in the idea that a future president would not overturn policies that have essentially been normalized, no matter the questions surrounding their constitutionality.
But it will take the administration time to put in place the most sweeping overhaul to the immigration system in decades, and the fight over his action is using up that resource.
When the U.S. Court of Appeals for the 5th Circuit in New Orleans expressed reservations last week about letting Obama’s immigration efforts move forward, it raised concerns among activists that the delay of the programs could run well into 2016.
Rather than cementing Obama’s immigration blueprint, such a timeline could leave Americans to grapple with the initiatives as they also consider whom to choose as the next occupant of the White House.
Those worries are a separate matter altogether from whether the courts will uphold Obama’s granting deportation deferrals to up to 5 million illegal immigrants and giving them work permits.
The longer the impasse, the less political risk there is for a Republican commander-in-chief to undo Obama’s actions — and the more illegal immigrants could question the protections they’ve been promised.
“I can’t overstate the importance of the timing of all this,” said an immigration activist who has met numerous times with White House officials. “Our greatest fear is that this drags on. And it gives those who qualify even more reason to say, ‘Do I really want to sign up?'”
“You can’t put the toothpaste back in the tube,” a former Obama Justice Department official added of the White House’s strategy. “Both sides know it. That’s why simply starting [the relief for illegal immigrants] is basically checkmate, as far as they see it.”
The 5th Circuit, seen as the most conservative appellate court at the federal level, appears unlikely to issue a stay on a district court injunction that effectively blocked Obama’s most expansive protections for illegal immigrants.
The original ruling by Texas judge Andrew Hanen argues that attorneys general in red-leaning states should be allowed to pursue a lawsuit against the administration before the federal government even considers the possibility of enrollments.
If the appeals court rules against the Obama administration, the White House has all but said Obama would take the matter to the Supreme Court.
And this showdown is just over whether the immigration programs receive the green light while states mount legal challenges to the Obama initiatives. The broader court battles would take even longer, further complicating a centerpiece of the Obama legacy.
Yet, Republicans could have their own problems with a protracted fight in court, some conservatives warned. They say that without a clear alternative to Obama’s plans, Republicans would risk further eroding their standing with Hispanic voters.
“I think the administration with Latinos is in a good position regardless of what happens. They’ll at least get credit for trying,” said Alfonso Aguilar, executive director of the American Principles Project’s Latino Partnership and a conservative who has pushed Republicans to pass immigration legislation.
“These people aren’t going to be deported. The question is: Will they get their work permits? It’s fine if you want to do away with [Obama’s actions]. But what are you going to do? It’s not only bad with Latino voters — it’s just bad politics.”
Some Democrats argued that Obama benefited in the 2012 presidential election from not passing comprehensive immigration reform in his first term, allowing him to hammer Republican Mitt Romney for not supporting reforms widely supported by Latino voters.
Perhaps that’s why the White House on Monday appeared unconcerned about the prospect of a lengthy legal fight on immigration.
White House press secretary Josh Earnest was quick to point out that Obama would continue to employ so-called prosecutorial discretion, declining to deport immigrants for simply being in the U.S. illegally. The administration says it will focus its resources on violent offenders and those recently crossing the border illegally.
“We feel very confident in the strength of the legal arguments that we’re in a position to make,” Earnest said. “And we’re going to make those arguments aggressively. And we’re going to urge the court to act quickly to consider them and rule on them.”
