By Jordan Fabian - 04/16/15 05:05 PM EDT
President Obama’s executive actions on immigration will be tested on Friday when a federal appeals court considers whether to lift an order blocking the actions to allow millions of immigrants without legal status to remain in the United States.
Lawyers from the federal government and 26 states opposed to Obama’s immigration policies will make oral arguments in front of a three-judge panel from the Fifth Circuit U.S. Court of Appeals in New Orleans, the most conservative circuit in the country.
Supporters of Obama’s programs are hopeful the court’s recent dismissal of a separate lawsuit against the immigration programs are a sign the judges will be on their side.
The panel may take days or weeks to decide on the government’s motion.
If it lifts U.S. District Court Judge Andrew Hanen’s preliminary injunction, the Obama administration could begin implementing its programs. If it does not, Obama’s actions will remain in limbo.
The atmosphere surrounding the hearing is expected to be charged. More than 150 people plan to demonstrate outside the courthouse, including immigrants eligible for relief under Obama’s programs, according to immigrant-rights groups.
With just 21 months in Obama’s presidency, his administration is acting aggressively to resolve the legal issues surrounding the immigration programs, a key part of his presidential legacy.
But Obama’s lawyers could face an uphill battle in court on Friday.
The randomly selected panel hearing the arguments includes two conservatives — Judges Jerry Smith, who was appointed by President Ronald Reagan, and Jennifer Walker Elrod, a George W. Bush appointee. The third judge, Stephen Higginson, was appointed by Obama.
The ideological balance of the panel bothered some supporters of the president’s programs.
“We had concerns from the outset that the plaintiffs judge shopped to get Hanen and also knowing that this could very well end up in the Fifth Circuit on appeal,” said Marshall Fitz, vice president for immigration policy at the Center for American Progress, which has ties to the White House.
During oral arguments in a case challenging ObamaCare in 2012, Smith demanded the Justice Department produce a three-page letter explaining whether the administration believes the courts have the authority to review laws.
The unusual move came after the president said it would be “unprecedented” if the Supreme Court struck down his healthcare law. Critics termed it a “homework assignment.”
Two years ago, Elrod dissented when the full Fifth Circuit knocked down a Texas city’s ordinance that effectively barred immigrants living in the country illegally from renting homes.
Elrod wrote in her dissent the measure was an exercise of local police power and “does not constitute a regulation of immigration.”
But Obama backers were encouraged last week when the Fifth Circuit sided with the president and unanimously dismissed a separate lawsuit challenging Obama’s 2012 deferred action program.
The judges ruled that the plaintiffs in Crane v. Johnson, the state of Mississippi and a group of Immigration and Customs Enforcement (ICE) agents, did not have legal standing to sue because they could not prove they were harmed by Obama’s program.
A central issue in the current suit is whether the 26 states have proven they would suffer harm.
In its emergency stay request to the Fifth Circuit, the Justice Department argued Hanen’s ruling undermines the federal government’s ability to determine how to enforce immigration law.
“The preliminary injunction is a sweeping order that extends beyond the parties before the court and irreparably harms the government and the public interest,” it reads.
“The law is very strong on our side, even before the Crane decision,” Fitz said. “But we do think the Crane decision strengthens our hand.”
Opponents of Obama’s programs disagree, saying that Texas and the other states have presented evidence that proves the orders would harm them fiscally.
Plaintiffs have cited costs related to issuing drivers licenses to people who receive deportation deferrals. But the Obama supporters argue they ignored economic benefits, such as added tax revenue.
John Malcolm, a senior legal fellow at the conservative Heritage Foundation, said the record in the Mississippi suit was “smaller and more narrow” than in the Texas case and predicted it would not have “much bearing” on whether the injunction is lifted.
Obama has “recklessly acted outside of the boundaries of the U.S. Constitution, circumventing Congress to rewrite the law as he sees fit,” Texas Attorney General Ken Paxton, who is leading the case, said Tuesday.
Making the federal government’s case tougher, its lawyers must prove to the Fifth Circuit panel that the injunction will cause the administration harm in order for it to be lifted. The burden of proof was on the states in the lower court.
Whatever the Fifth Circuit decides, it will not be the end of the legal battles surrounding Obama’s immigration programs.
Still, immigrant-rights advocates believe it would be a major victory if Obama’s programs are allowed to go into place — even if some court battles continue.
“I have an extremely hard time seeing a scenario where these programs go into effect and they get rolled back because of litigation or legislation,” Fitz said. “There will be incredible momentum behind these policies.”
Opponents of the program argue that is why the injunction should remain in place. Mark Krikorian, executive director of the Center for Immigration Studies, which wants to reduce immigration levels, said if the programs take effect, “the outcome of the actual case is irrelevant.”
“The toothpaste will be out of the tube at that point,” said Krikorian.