Fifth Circuit U.S. Court of Appeals

David G. Savage, Brian Bennett and Molly Hennessy-Fiske
October 9, 2015

A federal appeals court dealt a severe and possibly fatal blow Monday to President Obama’s executive actions to allow up to 5 million immigrants living illegally in the United States to stay and obtain work permits.

The decision by the U.S. 5th Circuit Court of Appeals may have come too late for the administration to appeal to the Supreme Court and win a reversal before Obama leaves office.

In a 2-1 decision, the appeals court sided with Texas and 25 other states that had sued to block Obama’s programs, Deferred Action for Parents of Americans, or DAPA, and an extension of Deferred Action for Childhood Arrivals, or DACA.

The two judges ruled that Obama had “no statutory authority” to issue such sweeping orders on immigration because they forced a change in government regulations that did not go through full and proper procedures.

“At its core, this case is about the [administration’s] decision to change the immigration classification of millions of illegal aliens on a class-wide basis,” Judge Jerry Smith said, joined by Judge Jennifer Walker Elrod.

Immigration law “flatly 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 court concluded.

The administration’s lawyers fully expected to lose before the conservative appeals court, based in New Orleans. The two judges had already signaled they agreed with a federal judge in Texas who first blocked Obama’s order.

But they took nearly five months to issue an opinion that ran to 135 pages, including the dissent.

Obama’s lawyers can now rush an appeal petition to the high court. Texas would then have 30 days to respond.

Only then would the Supreme Court put the appeal on its list of cases to be considered. And unless the justices have voted by mid-January to hear an appeal, the case would not be argued and decided in the term that ends next summer.

Cases taken up in February or later will not be decided until early in 2017 — after Obama has left the White House.

The dissenting member of the appeals panel, Judge Carolyn Dineen King, criticized her colleagues for the “extended delay that occurred in deciding this ‘expedited’ appeal.”

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