By Aaron T. Bell

Steve Rhodes / Flickr / Creative Commons

Opponents of the Obama administration’s executive actions on immigration – measures the President announced last November – have successfully blocked their implementation, setting the stage for a renewed political battle over the issue during next year’s U.S. elections.  Citing frustration with congressional inaction on immigration, Obama had announced that he would use his authority to expand the age limit of the Deferred Action for Childhood Arrivals (DACA) program, which temporarily defers deportation and allows undocumented immigrants to work, and to create a similar program for the undocumented parents of U.S. citizens and permanent residents.  Twenty-six states, led by Texas, filed a lawsuit in response, claiming that Obama violated a constitutional requirement to enforce the law and that he committed a technical violation of the Administrative Procedure Act (APA).  On February 16, the day before DACA was set to expand, a federal judge in Texas issued an injunction on the executive action programs.  The administration filed for a temporary stay of the injunction, which would allow it to begin implementing the programs while the court weighed their legality, but two weeks ago a Court of Appeals panel turned it down.  A long legal process in the 5th Circuit Appeals Court (based in Louisiana) will follow.

Despite this setback, recent precedents suggest that the Administration may yet win its case.  Arizona Sheriff Joe Arpaio, an outspoken opponent of reform, filed a lawsuit against the administration shortly after Obama announced his executive action, but a federal judge threw out the case in December on the grounds that Arpaio had not suffered direct injury from these actions and was thus ineligible to file suit.  Two months ago the 5th Circuit, which has a conservative reputation, unanimously dismissed a lawsuit filed by Mississippi and several Immigration and Customs Enforcement officers that challenged the original DACA program.  As in the Arpaio suit, the court reasoned that the plaintiffs lacked legal standing to bring the case, and – rejecting an argument also embraced by the Texas lawsuit that Obama’s executive action will cost taxpayers thousands of dollars in processing fees for driver’s licenses – the court recognized the economic benefits of the DACA program.  Fourteen states and the District of Columbia filed a brief in court in favor of the government’s case arguing that Texas and its co-plaintiffs have underestimated the fiscal benefits of the executive action programs.

Although the Courts may in the end reject the arguments of Obama’s opponents, they can claim at least short-term success.  Implementation has come to a complete halt, and immigration activists worry that the longer the legal process drags out, the less willing undocumented immigrants will be to apply to the programs and increase their risk of future deportation.  A subsequent appeal to the Supreme Court may push the executive actions back to mid-2016, reinvigorating immigration reform as a campaign issue just as election season is heating up.  Pew Research announced last week that its most recent polling data show that 72 percent of Americans support a path to legal citizenship for undocumented workers in the country, including 56 percent of Republicans.  Presumptive Democratic candidate Hillary Clinton has already pledged her support for reforms that go further than what Obama has tried to accomplish.  Republican candidates have slammed the President’s executive actions as “overreach” but are divided on where to go from there.  Former Florida governor Jeb Bush and Senator Marco Rubio have expressed support for a legislative replacement for DACA, while Senators Ted Cruz and Rand Paul have said they would make reversing Obama’s executive actions on immigration one of their first acts as president.  Wisconsin Governor Scott Walker recently expressed a desire to limit legal immigration as well in order to protect American jobs. Delaying immigration reform may ultimately put the Republican Party’s candidates in a difficult position next year.  If Obama’s executive action benefits family and friends of tens of thousands of Latino immigrants in the months preceding the November elections, the weak Hispanic voter turnout for Democratic candidates in the 2014 midterms is likely to be replaced by enthusiastic and potentially decisive support for a Democratic presidency, particularly if the Republican candidate focuses on appealing to the party’s nativist faction.

June 6, 2015