President Obama's expanded deferred action program for those facing deportation suffered a severe blow yesterday. A three-judge panel of the Fifth Circuit Court of Appeals has ruled that Obama overstepped his authority in implementing executive actions to allow nearly 5 million undocumented immigrants to stay in the U.S. and receive work permits.
While an appeal to the Supreme Court is likely, time may be running out on President Obama's attempt to provide temporary status to these immigrants. It is unclear whether the Supreme Court would hear the appeal this term or its next term. If the case is delayed until the 2016-2017 term, such a ruling would likely be issued after the President left office.
The appellate court, in a 2-1 decision, ruled in favor of the State of Texas and 25 other states that had joined in the legal challenge to Obama's programs - expanded Deferred Action for Childhood Arrivals (DACA) and a new program called Deferred Action for Parents of Americans (DAPA). The two judges ruled that the President lacked "statutory authority" to issue the executive orders and that DHS had failed to provide notice and an opportunity for public comment.
According to the judges, federal law "does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization." The 2 judges rejected what they called an attempt to "change the immigration classification of millions of illegal aliens on a class-wide basis."
This appeal was supposed to be an "expedited" appeal; however, the two Republican judges took 5 months to rule and their decision was 135 pages long. The dissenting judge, Carolyn Dineen King, criticized the majority of the "extended delay" in issuing the ruling, for which she said there was "no justification." Presumably, the judges took their time in order to slow down an appeal by the Supreme Court.
The two executive orders would have expanded DACA, a popular program that allows young people who arrived in the U.S. without inspection as children to get work authorization and prevent deportation. DAPA would have granted three-year work permits and temporary protection from deportation to adults in the U.S. who are parents of U.S. citizens and green card holders who have been present in the U.S. for more than five years.