Politico

By Seung Min Kim
7/10/15 – 8:23 PM EDT

President Barack Obama appears likely to lose – again – in the protracted legal fight over his executive actions on immigration.

Two of the three appeals court judges who heard oral arguments Friday on the Obama administration’s immigration programs were skeptical about the legal merits of the directive, which could halt deportations for more than 4 million immigrants here illegally who have family ties in the United States.

The chilly reception from the three-judge panel in the Fifth Circuit Court of Appeals on whether Obama had legal authority to take such action seems to indicate that a lower court decision blocking the new programs would stay in place.

The Obama administration has argued that the executive actions were a standard use of prosecutorial discretion, since the federal government does not have the resources to deport the estimated 11 million immigrants here illegally. But Judge Jerry Smith disputed that contention.

“It puts them one step ahead in terms of being eligible for lots of potential benefits, whether those are Social Security and Medicare, work authorization, earned income tax credits, and on the state level, drivers’ licenses,” Smith said of immigrants who would benefit from Obama’s actions. “Just seems to me that … it really is a lot more than prosecutorial discretion.”

And Judge Jennifer Walker Elrod, like Smith a Republican appointee, repeatedly grilled administration lawyers on Friday.

She had questions on whether the Department of Homeland Security had “boundless” authority to grant work permits, and whether so-called “deferred action” — stopping deportation of certain undocumented immigrants — could give work authorization to a broad class of people here illegally.

“It would seem that it would be unlawful to allow other people to have deferred action with work authorization when who gets work authorization is specifically limited to very narrow classes,” Elrod said.

Benjamin Mizer, the acting assistant attorney general for the Justice Department’s Civil Division, argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound.

“It doesn’t make much sense to say, ‘We’re not going to be able to remove you right now, so you have to go back out into the country, but you’re not allowed to work, [and] if you’re gonna work, it has to be off the books,’” Mizer said. “As a policy matter, it doesn’t make sense.”

The drawn-out legal case over Obama’s executive actions , which he announced last November to much fanfare and controversy, threatens to undermine what otherwise would have been a legacy item for the president in his second term.

Few expect Obama to prevail in the Fifth Circuit, which already rejected an emergency request from the administration to let the executive actions — scheduled to begin in February but on hold since then — to proceed while the larger legal case plays out in the courts. The New Orleans-based court is considered the most conservative appeals court in the country.

The two judges who ruled against the Obama administration in that May decision also heard the two-hour oral arguments Friday: Elrod, who was appointed by President George W. Bush, and Smith, appointed by President Ronald Reagan.

Now, the bigger question in the legal case is timing — and whether a high-stakes legal fight over Obama’s immigration actions will explode in the heat of the 2016 presidential campaign.

The Fifth Circuit judges don’t have a deadline for delivering their final ruling. And after the appeals court considered the stay, that ruling wasn’t handed down until more than a month after the oral arguments in April.

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