Published December 31, 2016
The U.S. government on Thursday asked an appeals court to lift a temporary hold on President Barack Obama's executive action to shield millions of immigrants from deportation, arguing it can't wait for the judge who blocked the action to make a ruling on a similar request.
Justice Department attorneys filed an emergency motion with the 5th U.S. Circuit Court of Appeals in New Orleans to lift a preliminary injunction issued last month by U.S. District Judge Andrew Hanen in Brownsville, Texas.
The injunction had been issued on the request of a coalition of 26 states that filed a lawsuit to overturn Obama's immigration plan. The states, led by Texas, argue that Obama's action was unconstitutional and would force them to invest more in law enforcement, health care and education.
The injunction was intended to stall Obama's actions — which would spare from deportation as many as 5 million people who are in the U.S. illegally — while the lawsuit progresses through the courts. Many Republicans in Congress and states led by Republicans oppose the action, saying Obama overstepped his authority as president. Obama said he had to act because Congress has failed to pass comprehensive immigration reform.
The Justice Department had asked Hanen to lift the injunction while the case was appealed to the 5th Circuit. But Hanen put that request on hold pending a hearing on March 19 to review allegations the government misled him about the implementation of part of the immigration plan.
In their 21-page motion, Justice Department attorneys called the injunction "unprecedented and wrong" and argued lifting it was crucial as the order "irreparably interferes with (the Homeland Security Department's) ability to protect the Homeland and secure our borders."
Justice Department attorneys said that if the injunction is not lifted, it should at least apply either only to Texas or to the 26 states that sued.
"President Obama's unconstitutional use of executive power to accomplish what he couldn't do in Congress sets a dangerous precedent that threatens the fabric of our Republic ... The state of Texas and a bipartisan coalition of 25 other states will continue to oppose the President's unilateral and lawless actions," Texas Attorney General Ken Paxton said in a statement responding to the Justice Department's emergency motion.
Legal experts say the 5th Circuit is known to be fairly conservative, and is likely to deny the Justice Department's request. Ultimately, it could end up before the U.S. Supreme Court.
At next week's hearing, Hanen was set to have Justice Department attorneys explain why the federal government granted three-year deportation reprieves as well as work permits to 100,000 individuals before Hanen's Feb. 16 injunction. Attorneys had previously said federal officials wouldn't accept such requests until Feb. 18.
The Justice Department has said the reprieves and work permits were granted under the 2012 Deferred Action for Childhood Arrivals program, known as DACA, which was not halted by Hanen's injunction. DACA protects young immigrants from deportation if they were brought to the U.S. illegally as children.
In a separate court document filed with Hanen's court on Thursday, the Justice Department said the acknowledgement that some individuals were granted reprieves under 2012 DACA guidelines does "not bear on the resolution" of the pending request before the judge to lift the injunction.
Hanen's injunction put on the hold an expansion of DACA as well as a program that would extend deportation protections to parents of U.S. citizens and permanent residents who have been in the country for some years.
The other states seeking to block Obama's orders are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin.