FILE - In this Nov. 21, 2014, file photo, U.S. President Barack Obama speaks about immigration at Del Sol High School in Las Vegas. Obama's plan to protect from deportation an estimated 5 million people living in the United States illegally suffered another setback Monday, Nov. 9, 2015, in a ruling from a New Orleans-based federal appeals court. In a 2-1 ruling, the 5th U.S. Circuit Court of Appeals upheld a Texas-based federal judge's injunction blocking the administration's immigration initiative. (AP Photo/Carolyn Kaster, File)
WASHINGTON (AP) – The Obama administration will ask the Supreme Court to weigh in on the president's plan to shield as many as 5 million immigrants living in the country illegally from deportation.
The 5th U.S. Circuit Court of Appeals on Monday upheld a Texas-based federal judge's injunction blocking President Barack Obama's plan to protect parents of U.S. citizens and legal permanent residents along with more immigrants who came to the country as children.
The Justice Department says it disagrees with the 2-1 ruling and will appeal to the high court.
Republicans had criticized the plan as an illegal executive overreach when Obama announced it last November. Twenty-six states challenged the plan in court.
The administration argued that the executive branch was within its rights in deciding to defer deportation of selected groups of immigrants, including children who were brought to the U.S. illegally.
Texas Gov. Greg Abbott praised the ruling.
"President Obama should abandon his lawless executive amnesty program and start enforcing the law today," Abbott said in a news release.
"We strongly disagree with the 5th Circuit's decision," said a White House official who requested anonymity because the person was not authorized to speak publicly about a legal matter still underway. "The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws."
The ruling further dims prospects of implementation of the executive action before Obama leaves office in 2017. Appeals over the injunction could take months and, depending on how the case unfolds, it could go back to the Texas federal court for more proceedings.
The administration could ask for a re-hearing by the full 5th Circuit but the National Immigration Law Center, and advocacy group, urged an immediate Supreme Court appeal.
Justice Department spokesman Patrick Rodenbush said in a statement they were reviewing the opinion to determine how best to proceed.
"The department is committed to taking steps that will resolve the immigration litigation as quickly as possible in order to allow DHS (Department of Homeland Security) to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children," he said.
Part of the initiative included expansion of a program called Deferred Action for Childhood Arrivals, protecting young immigrants from deportation if they were brought to the U.S. illegally as children. The other major part, Deferred Action for Parents of Americans, would extend deportation protections to parents of U.S. citizens and permanent residents who have been in the country for years.
The 70-page majority opinion by Judge Jerry Smith, joined by Jennifer Walker Elrod, rejected administration arguments that the district judge abused his discretion with a nationwide order and that the states lacked standing to challenge Obama's executive orders.
They acknowledged an argument that an adverse ruling would discourage potential beneficiaries of the plan from cooperating with law enforcement authorities or paying taxes. "But those are burdens that Congress knowingly created, and it is not our place to second-guess those decisions," Smith wrote.
In a 53-page dissent, Judge Carolyn Dineen King said the administration was within the law, casting the decision to defer action on some deportations as "quintessential exercises of prosecutorial discretion," and noting that the Department of Homeland Security has limited resources.
"Although there are approximately 11.3 million removable aliens in this country today, for the last several years Congress has provided the Department of Homeland Security with only enough resources to remove approximately 400,000 of those aliens per year," King wrote.
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