The Obama administration faces an uphill battle on Friday when it seeks to convince a panel of federal judges to let the president’s executive actions on immigration take effect.
The same two Republican-appointed judges who denied an earlier administration attempt to lift a hold on Obama’s immigration actions will hear arguments at the 5th U.S. Circuit Court of Appeals in New Orleans.
Court watchers expect an unfavorable ruling for Obama from the three-judge panel, which sits on the most conservative circuit in the country.
“It’s likely to be a similar result,” said Carl Tobias, a professor at the University of Richmond School of Law. “It’s unlikely that [the two judges] will change their views.”
The White House is encountering legal roadblocks on immigration after two recent Supreme Court victories on same-sex marriage and healthcare, which gave the president a jolt of momentum late in his second term.
If the White House eventually wins, it could leave just a few months to implement the program. But if it loses, it would strip away a major promise Obama made to Hispanic groups in the run up to the 2014 midterm elections.
The atmosphere surrounding the hearing is certain to be charged. Reps. Luis Gutiérrez (D-Ill.) and Raúl Grijalva (D-Ariz.), as well as immigrant-rights advocates, plan to demonstrate outside the courthouse to call on the judges to allow the programs to go into effect.
It will also take place against the backdrop of the recent fatal shooting of a California woman, allegedly by an undocumented immigrant, and amid fallout from incendiary remarks on immigration from Republican presidential hopeful Donald TrumpDonald TrumpDallas Stars troll Trump on attendance size Conway: Presidents judged by accomplishments, not inauguration crowd size US, British leaders eye trade deal MORE — both of which have further roiled the debate nationwide.
After Congress failed to pass a sweeping immigration overhaul last year, Obama issued executive orders in November allowing certain immigrants who are parents of U.S. citizens or legal resident children to apply for deportation reprieves and work permits.
They also expanded a 2012 program, known as Deferred Action for Childhood Arrivals (DACA), providing similar relief to immigrants brought to the U.S. as children. The orders, if fully enacted, could affect as many as 5 million undocumented immigrants.
Led by Texas, 26 mostly Republican-led states sued the administration, arguing the moves overstepped Obama’s executive authority.
They also claimed the programs would harm the states by imposing added costs related to driver's licenses for people who receive deportation referrals.
The White House has steadfastly maintained that the president acted within the law by using “prosecutorial discretion” to exempt noncriminal immigrants from deportation. They also say the states ignored economic benefits, such as added tax revenue.
U.S. District Court Judge Andrew Hanen, a George W. Bush appointee, sided with the states in February, handing down an injunction blocking the programs from taking effect while the court considers the lawsuit.
In May, circuit court Judges Jennifer Elrod and Jerry Smith rejected an emergency request from the Department of Justice to allow the actions to proceed.
They argued the states made a compelling case they would suffer harm if the program was allowed to move forward and that the administration’s appeal was unlikely to succeed on the broader legal issues.
The administration also contended the 26 states that brought the suit don’t have standing, though the two judges appeared skeptical of that argument as well.
On Friday, Smith and Elrod will again hear arguments from Obama administration lawyers and attorneys representing the states — this time focusing on whether the Texas judge’s order was legal.
“The two judges were convinced that Texas was likely to prevail on the merits,” said Josh Blackman, a constitutional law professor at the South Texas College of Law, who helped file a legal brief backing the lawsuit against Obama’s programs.
Joining them on the panel will be Judge Carolyn King, who was appointed by Democratic President Jimmy Carter.
King in April ruled in favor of the Obama administration on a separate lawsuit challenging his 2012 immigration action, and advocates hope she will side with the president again.
Obama was set to huddle with Attorney General Loretta Lynch at the White House Thursday afternoon, one day before the arguments.
"The administration continues to have a lot of confidence in the power of [our] legal arguments," White House press secretary Josh Earnest said Tuesday.
Immigrant rights advocates, meanwhile, have expressed frustration at the delay. While they continue to press for the programs to go into effect, some advocates are turning their attention to other efforts as the lawsuit works its way through the courts.
“I think there is a realization the delay is longer than we have hoped for,” said Marielena Hincapié, executive director of the National Immigration Law Center.
Four different advocacy groups are convening a strategy session in New Orleans to raise awareness of other immigration actions not affected by the lawsuit, Hincapié said, including new guidelines that seek to reduce deportations of immigrants who are not deemed to pose a threat to public safety.
Advocates remain confident the orders will eventually go into place. But until then, they intend to punish Republicans for supporting the lawsuit.
The executive actions are popular with Hispanic voters, who will play an influential role in the 2016 elections. Candidates such as Sens. Ted CruzTed CruzTrump's America: Businessmen in, bureaucrats out When Trump says 'Make America Great Again,' he means it Booker is taking orders from corporate pharmaceuticals MORE (Texas) and Marco RubioMarco RubioGOP, Dems hear different things from Trump Senate committee to vote Monday on Tillerson Tillerson met with top State official: report MORE (Fla.) want to end Obama’s programs.
House Republicans introduced a bill this week that would cut off funding for the initiatives if they take effect.
“This might be short term victory for the GOP. But a year from now, they are going to be looking at a much bigger lawsuit before the Supreme Court, which will be magnified by the fact it will take place in an election year,” said David Leopold, former president of the American Immigration Lawyers Association and a backer of Obama's programs. “In the long term, they are going to be the big losers.”
A victory in court, however, could embolden Republicans who have accused Obama of abusing his executive powers.
“It is inconsistent with the law,” Cruz said during a recent interview with Jorge Ramos. “What Barack ObamaBarack ObamaWomen's march was second-busiest day in Metro history Conway: Spicer used 'alternative facts' in press briefing Schumer ready to leave Supreme Court seat open MORE is doing is what dictators in other nations have done?”