On Immigration, “A Mistake Has Been Made” And The Supreme Court Must Fix It

Yesterday’s 2/1 decision by the 5th Circuit was expected, given the make-up of the panel.  But the sharp and persuasive dissent authored by Judge Carolyn Dineen King should not be overlooked, as it points the way for the Supreme Court to step in and correct this egregious mistake.

Judge King cogently asserts that, simply put, the Republican assault on Obama’s executive actions does not belong in court:

The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.  That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested parties across the ideological spectrum—Mayors, Senators, Representatives, and law enforcement officials, among others—but also by the district court’s opinion, which repeatedly expresses frustration that the Secretary is “actively act[ing] to thwart” the immigration laws and “is not just rewriting the laws [but is] creating them from scratch.” The majority’s observation that this suit involves “policy disagreements masquerading as legal claims” is also telling.  Whether or not the district court’s characterization of this case is accurate—though the record number of removals in recent years demonstrates that it is not—to the extent some are unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the political process, not in litigation.

King’s biggest swipe is aimed at her colleagues, Judges Jerry E. Smith and Jennifer Walker Elrod, for their inexplicable slow-walking of the decision which threatened to delay Supreme Court review until June 2017, months after President Obama leaves office.

I have a firm and definite conviction that a mistake has been made.

King writes,

That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal.  There is no justification for that delay.

I dissent.

That’s some very tough language.  And it raises the obvious question—which many have been asking since the panel failed to decide the case within the 5th Circuit’s 60 day decision target: Did Judges Smith and Elrod intentionally delay their decision?

As King correctly observes, in March the 5th Circuit granted the Department of Justice’s request to fast-track the case.  On July 10, Smith, Elrod and King heard argument on the merits of the case.  Why then did it take four long months for the panel to decide; especially when there was little doubt about what Smith and Elrod were going to do?

Nearly everyone watching the case knew the two Republican appointees were all but certain to side with the GOP challenge to Obama’s deferred action program. That’s because in May they both refused to temporarily lift Hanen’s hold on the administration’s immigration actions, stating: “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”

King is right to highlight the court’s incomprehensible delay, which exemplified the legal maxim “Justice Delayed Is Justice Denied.”  This case does not just involve legal principles, it involves the lives of 5 million American children and their parents.

On the merits the ruling was hardly a surprise.  The 5th circuit appeals court is considered by many to be the most conservative federal appeals court in the country, and Judges Smith and Elrod are among the most conservative judges on the court. Most observers expected them to side with the Republican governors and attorneys general that filed the case in the courtroom of U.S. District Judge Andrew Hanen of Brownsville, Texas who earlier this year blocked President Obama’s immigration executive actions from being implemented.

At bottom, Smith’s and Elrod’s decision yesterday was a more detailed version of their order earlier this year refusing to lift the hold that Hanen had put on the executive actions.  In her dissenting opinion King methodically and convincingly dismantled their reasoning.  Her forceful analysis, which provides a clear roadmap for the Supreme Court to reverse the 5th Circuit decision, is perhaps best summarized by King herself:

Even if this case were justiciable, the preliminary injunction, issued by the district court, is a mistake. If the [President’s deferred action guidance] is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements, and the injunction cannot stand.  Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA’s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws as to over four million illegal aliens.”…That conclusion is clearly erroneous.  The majority affirms and goes one step further today.  It holds, in the alternative, that the Memorandum is contrary to the INA and substantively violates the APA.  These conclusions are wrong.  The district court expressly declined to reach this issue without further development…and the limited briefing we have before us is unhelpful and unpersuasive.  For these reasons, as set out below, I dissent.

King also correctly makes a point of reminding her colleagues that deferred action to shield undocumented immigrants is nothing new. It dates back to the Eisenhower administration and has been used by every president since; the most notable example being the “Family Fairness” policy implemented by Presidents Ronald Reagan and George Bush, Sr.  As King writes:

Much like pretrial diversion in the criminal context—which also developed over a period of decades without express statutory authorization—deferred action channels limited resources by allowing certain low-priority offenders to work openly and contribute taxes, thus reducing their burden on the system.  Notably, such prosecutorial discretion is heightened in the immigration context.

It may seem counter-intuitive, but in legal terms yesterday’s decision was actually good news for supporters of Obama’s immigration executive actions and for the millions of DREAMers, American children, and parents who have been patiently waiting for justice.  There is still time for the U.S. Supreme Court to take it up this term and make a decision by June.

Of course the Department of Justice must now do everything in its power to get the case before the U.S. Supreme Court immediately.  And once it gets there will be incumbent on the Supreme Court to clean up the integrity that 5th Circuit majority besmirched; to decide the merits of the GOP assault on Obama’s immigration actions without politicizing the case on a partisan basis; to base its decision on facts and precedent rather than conjecture, and do it without engaging in political delays.

[Update:  The Department of Justice has announced it will petition the U.S. Supreme Court to hear its appeal of the 5th Circuit Appeals Court decision]

The shocking reality of Donald Trump’s plan to deport millions

Posted on MSNBC.com by David Leopold

DALLAS, TX - SEPTEMBER 14: Republican presidential candidate Donald Trump speaks during a campaign rally at the American Airlines Center on September 14, 2015 in Dallas, Texas. More than 20,000 tickets have been distributed for the event. (Photo by Tom Pennington/Getty Images)

DALLAS, TX – SEPTEMBER 14: Republican presidential candidate Donald Trump speaks during a campaign rally at the American Airlines Center on September 14, 2015 in Dallas, Texas. More than 20,000 tickets have been distributed for the event. (Photo by Tom Pennington/Getty Images) Photo by Tom Pennington/Getty

It’s not clear what was the most shocking about Donald Trump’s rally Monday night in Dallas, Texas: his description of undocumented immigrants as part of a “dumping ground for the rest of the world,” or the reaction of the nearly all-white crowd who awarded his rhetoric with a standing ovation and chants of “USA, USA.”

One day – hopefully soon – when the presidential candidacy of Donald Trumpreaches its ignoble end, perhaps we’ll better understand how a real estate mogul-turned-reality TV star turned-politician could become the front-runner in the Republican primary. But for now, we must take Trump at his word: If elected president, he plans to deport all 11 million undocumented immigrants – including their U.S. citizen children. What’s more, Trump claims he’ll do it all within 18 months to two years. It is, according to Trump, just a question of “good management.”

It is surprising, then, that as we head into the second Republican debate Wednesday night at the Reagan Library in Simi Valley, California, that Trump’s brazen call for mass expulsion of all undocumented immigrants has largely escaped scrutiny in the media, either because he isn’t taken seriously or journalists are afraid of offending him and losing access. But now that the “summer of Trump” has turned into fall, it’s high time that someone call on Trump to explain what he means when he declares that undocumented immigrants “have to go.”

We’re left asking this question in 2015: How would Trump actually deport 11 million people in less than two years?

The leading GOP candidate is talking about ferreting out, arresting, and forcibly removing a population of men, women and children roughly the size of the state of Ohio. Setting aside the Constitution for the moment – something most of Trump’s immigration platform ignores – let’s imagine what a grand scale deportation would mean in real terms. It’s frightening, extreme – and decidedly un-American.

First there would be the rooting out of undocumented men, women and children throughout the entire United States. Department of Homeland Security enforcement agents would have to fan out all over the country looking for undocumented immigrants. Since many work in agriculture, we’d likely see agents combing through rural areas and small town America – places like Painesville and Findlay, Ohio.

We got a glimpse of what that would look like in 2008, when Immigration and Customs Enforcement (ICE) agents raided the Agriprocessors kosher meat packing facility in Postville, Iowa. Hundreds of armed ICE agents swooped into the town – population 2,000 – with helicopters and prison buses to arrest nearly 400 undocumented immigrants, most of whom were Guatemalan laborers. ICE then locked up the immigrants at the National Cattle Congress – which had been turned into a makeshift immigration prison – in nearby Waterloo, where they awaited criminal trials and deportation.

But Postville was just one small town in Iowa. Trump’s mass deportation plan would recreate that disturbing scene in every American community in all 50 states – every county, town and city. As Malcom Harris recently observed, “Sending an amped-up ICE on a mass-deportation mission wouldn’t just be an assault on undocumented people and their families, it would be an attack on American cities, where more than 90 percent of them live.”

Trump’s deportation dragnet would likely start by wreaking havoc on the lives of millions of U.S. citizens. To find undocumented immigrants, immigration enforcement agents would have to whittle down who they question about their immigration status, and that would include interrogating U.S. citizens. Further, because so many undocumented immigrants are part of mixed immigration status families, Americans would be put in the untenable position of having to decide whether to stay in their country, separated from their loved ones facing deportation, or leave the U.S.

In Trump’s America, where the newly inaugurated president would seek to make good on his campaign promise to deport 11 million people within 2 years, what would happen to core American values including family, hard work, community and fairness?

Would our citizens be coerced into becoming immigration informants? Would Americans rat on their neighbors, friends or relatives out of a misguided feeling of patriotism or, perhaps worse, vengeance and retribution? Would undocumented women, children and elderly be exposed to abuse by those who would take advantage of Trump’s deportation machinery to extract control, money or other unspeakable forms of abuse under threat of being exposed to homeland security agents?

Would non-white American citizens and lawful residents be at greater risk of stop, arrest and investigation based on their manner of dress, accent or skin color? And what about unscrupulous employers? One of the strongest arguments in favor of comprehensive immigration reform is that a pathway to earned legal immigration status will reduce workplace exploitation, including sweatshop wages and sexual abuse. One can only imagine the horrible price a corrupt employer might extract from an undocumented immigrant who is desperate to avoid deportation and separation from her family.

Even if Trump were elected president, he would not be able to fulfill many of his draconian promises on immigration – including mass deportation of all undocumented immigrants. Trump’s ugly agenda assumes there is no Constitution, no separation of powers, and no checks and balances which would prevent him from carrying out mass expulsion of undocumented immigrants. Nevertheless, the media has a professional and ethical obligation to the American people to press Trump for specifics on how he would implement his stated immigration agenda, so that voters know exactly what they’d be signing up for if they accept Trump’s offer to “make America great again.”

Tomorrow night in Simi Valley would be a good time to start.

David Leopold practices immigration law in Cleveland, Ohio, and is the past president of the American Immigration Lawyers Association.

Must Read #Immigration News, Opinions and Editorials–08/12/2013

Los Angeles Times: Immigration reform creates odd political alliances
By Brian Bennett and Joseph Tanfani
August 11, 2013


Associated Press: Some House Republicans untouched by campaign for immigration overhaul

By Erica Werner

August 11, 2013



Financial Times: Republican Bob Goodlatte is linchpin for US immigration reform

By Stephanie Kirchgaessner

August 9, 2013





The Hill: Big bills pile up for House GOP

By Russell Berman

August 10, 2013



Washington Post: Harry Reid aiming to ‘win’ with Senate immigration bill

By Ruth Tam

August 9, 2013



Roll Call: Zuckerberg Tracks Down Members of Congress for Immigration Ads

By Kent Cooper

August 9, 2013





ABC/Univision: Obama: House Has Votes to Pass Senate Immigration Bill

By Jordan Fabian

August 9, 2013



Politico: Obama: GOP politics stopping immigration bill

By Seung Min Kim

August 9, 2013



International Business Times: Immigration Reform 2013: ‘Deporter In Chief’ Obama Shouldn’t Seek Political Advantage From Gridlock, Advocate Says

By Laura Matthews

August 11, 2013





Politico: Steve King: Immigration remarks not debunked

By Tal Kopan

August 11, 2013



CBS News: Rep. Steve King stands by divisive immigration comments

By Jake Miller

August 11, 2013



Mother Jones: Meet the Immigration Reformers in Steve King’s Iowa

By Tim Murphy

August 12, 2013





ABC News: Donald Trump Says Immigration Bill May Be ‘Death Wish’ for GOP

By Michael Falcone

August 11, 2013





USA Today: Immigration debate ensnares foreign workers

By Alan Gomez

August 11, 2013



Reuters: For mixed-status families, U.S. immigration reform would end anxiety

By Richard Cowan

August 10, 2013



Fox News: Loophole reportedly allows immigrants to use ‘key words’ to get asylum

August 11, 2013





NPR: Texas Congressman Pulled In Two Directions Over Immigration

By David Welna

August 9, 2013



Victoria Advocate (Texas): Congressman Farenthold on health care, immigration (video)

By Elana Watts

August 9. 2013



Houston Chronicle (Texas): Ad links Blake Farenthold to embattled Iowa Republican Steve King

August 9, 2013



Longview News-Journal (Texas): As state’s Hispanic minority grows, GOP faces challenge

By Glenn Evans

August 11, 2013



Greely Tribune (Colorado): March, rally press Gardner on immigration reform

By Trenton Sperry

August 11, 2013



Pueblo Chieftan (Colorado): Vilsack pushing Senate reform bill as answer

By Peter Roper

August 9, 2013



Sacramento Bee (California): Catholic bishop blesses pilgrims marching for change in immigration laws

By Stephen Magagini

August 12, 2013



The Morning Journal (Ohio): Rep. Jordan: House using step-by-step approach on immigration

By Richard Payerchin

August 10, 2013





Washington Post: With lure of religious classes, Iran seeks to recruit Latin Americans

By Joby Warrick

August 10, 2013



Wall Street Journal: U.S. Expats Balk at Tax Law

By Mariko Sanchanta and Jason Chow

August 12, 2013



Fox News Latino: ‘Elysium’ Star Diego Luna Says Film’s Immigration Story Line Not Far From Reality

By Naibe Reynoso

August 8, 213





News-Press (Missouri—Editorial): Immigration impacts all of us

August 10, 2013



Washington Post (Editorial): Law enforcement can’t harass suspected undocumented immigrants

August 11, 2013



Los Angeles Times (Editorial): Reining in immigration scammers

August 11, 2013



Washington Post (Blog): If House GOP leaders decide they want immigration reform, we’ll get it

By Greg Sargent

August 9, 2013



Washington Post (Blog): Everything you know about immigration is wrong

By Ezra Klein

August 10, 2013



Politico (Opinion): Why can’t we talk about IQ?

By Jason Richwine

August 9, 2013



MSNBC (Maddow Blog): Richwine returns

By Steve Benen

August 9, 2013



Kansas City Star (Opinion): It’s time for Kobach’s illegal immigration clients to send him back home

By Mary Sanchez

August 11, 2013



National Review (Opinion): Let There Be Amnesty!

By Mark Kirkorian

August 9, 2013



Milwaukee Journal Sentinel (Wisconsin–Opinion): A way forward on immigration?

By Doris Meissner

August 11, 2013



Cincinnati Inquirer (Ohio—Opinion): We rally to fix broken immigration system

By Julia Tellez

August 12, 2013



The Missourian (Missouri—Opinion): Immigration reform could help agriculture, boost economic growth

By Mark Cadle

August 11, 2013



Magic Valley News (Idaho—Opinion): Two Sides of the Story on Immigration

By Ann Youts

August 11, 2013



Southwest Farm Press (Texas—Opinion): No action on immigration reform equates to giving illegals amnesty

By Ron Smith

August 9, 2013



New York Times (Opinion): How the Post Was Lost

By Ross Douthat

August 10, 2013


#Immigration Headlines For May 2, 2013

New York Times: Failure of Gun Legislation Shadows Immigration Bill

By Jennifer Steinhauer

May 1, 2013



New York Times (Blog): How to Weaken a President

By David Firestone

May 1, 2013





Washington Post: Obama prods liberals to give-and-take on Senate immigration bill

By David Nakamura

May 1, 2013



Associated Press: Obama To Pitch Immigration Overhaul In Mexico

May 2, 2013



Washington Post: Immigration to be part of Obama’s trip to Mexico

By Zachary Goldfarb and Nick Miroff

May 1, 2013



Washington Post (The Fix): Why is immigration going so much better for Obama than the budget?

By Zachardy Goldfarb and Scott Clement

May 2, 2013



New York Times: Americans’ Unity on Big Issues Doesn’t Bridge Partisan Gap

By Ashley Parker

May 1, 2013



Politico: Poll: Citizenship support slips

By Kevin Cirilli

May 2, 2013



Politico: Poll: Obama gets negative ratings on immigration, guns

By Donovan Slack

May 1, 2013



NPR: Poll: Most African-Americans Support Immigration Reform

May 1, 2013



ABC News: Most Americans Don’t Know Much About Immigration Bill

By Serena Marshall and Jim Avila

May 1, 2013



Reuters: Most Americans say Boston attack not an immigration issue: Poll

By Susan Heavey

May 1, 2013



Washington Post (The Fix): Washington is deeply engaged with immigration. The public? Not so much.

By Sean Sullivan

May 1, 2013



National Journal: Why Lindsey Graham’s Support for Immigration Reform Isn’t Popular in South Carolina

By Beth Reinhard

May 2, 2013



Roll Call: Reid Vows Vigorous Immigration Bill Push

By Humberto Sanchez

May 1, 2013



Daily Caller: DeMint: Gang of 8 immigration proposal ‘unfair,’ ‘costs too much’ and will ‘make the problem worse’

By Jeff Poor

May 1, 2013



Journal Times (Wisconsin): Ryan pushes for reform

By Alison Bauter

May 1, 2013



Charlotte Observer: Mulvaney talks immigration, jobs in Fort Mill

By John Marks

May 2, 2013



Politico: What Ted Cruz knows

By Alexander Burns

May 2, 2013



National Journal: The Twisted Route to Immigration Reform

By Rebecca Kaplan and Joey Carolino

May 1, 2013



Christian Science Monitor: A part of immigration reform even critics like: integrating new Americans (+video)

By David Grant

May 1, 2013



CBS News: Illegal border crossings rise in South Texas as Congress debates immigration reform

May 1, 2013



NBC Latino: 8-year-old fights for immigration reform to be reunited with parents

By Damian Trujillo

April 30, 2013



New York Times: Across the Country, Supporters Rally for Immigration Overhaul

By Julia Preston

May 1, 2013



CBS News: May Day demonstrators across U.S. demand immigration reform

May 2, 2013



Los Angeles Times: May Day observer asks: ‘Are things changing in their favor?’

By Cindy Chang

May 1, 2013



Arizona Republic: Phoenix march for migrant rights reflects progress, long road ahead

By Alia Beard Rau

May 1, 2013



Associated Press (Colorado): About 200 rally for immigration reform in Denver

By Alexandra Tisley

May 1, 2013



ABC/Univision: Cesar Chavez’s Complex History on Immigration

By Ted Hesson

May 1, 2013



Los Angeles Times: L.A. Times updates guidelines for covering immigration

By Deirdre Edgar

May 1, 2013



Fox News Latino: Immigration Court Hearing For Two Boston Bombing Suspects

May 1, 2013



Washington Post (Letter to the Editor): Creating a better immigration bill

By Rep. Bob Goodlatte

May 1, 2013



Houston Chronicle (Opinion): Aiming for successful reform

By Sen. John Cornyn

April 30, 2013



Al.com (Opinion): Sen. Jeff Sessions’ failed approach has no place in immigration debate

By Victor Palafox and Cesar Vargas

May 1, 2013



Daily Beast (Opinion): Ted Cruz, the Anti-Rubio Who Is Determined to Stop Immigration Reform

By David Cantanese

May 2, 2013



Washington Post (Blog): Immigration reform proponents on offense, Rubio quarterbacks

By Jennifer Rubin

May 1, 2013



Chicago Tribune (Opinion): Immigration deformed

By Cal Thomas

May 2, 2013



Wall Street Journal (Opinion): Jobs Italians Won’t Do

By Jason Riley

May 1, 2013



Boston Globe (Opinion): Immigration reform stays on US soil

By Juliette Kayyem

May 2, 2013



The Hill (Blog): Remembering needs of immigrant workers on May Day

By Gregory Cendana

May 1, 2013



CNN (Opinion): May Day is for immigrants, too

By Gabriel Camacho and Arnie Alpert

May 1, 2013





Washington Post: Illegal immigrants could apply for D.C. driver’s licenses under Gray proposal

By Mike DeBonis

May 1, 2013



New York Times: Failure of Gun Legislation Shadows Immigration Bill

By Jennifer Steinhauer

May 1, 2013



As a gun safety bill dissolved on the Senate floor last month, a group of eight senators — some who had supported the failed measure — had already moved on to a policy battle they found more promising: reinventing the nation’s troubled immigration system.



But despite broader Republican support for an immigration overhaul, the inability of Congress to pass modest gun legislation involving background checks is a warning for the immigration bill’s journey.


Consider that on paper, immigration is actually a harder sell back home to voters. Although 86 percent of adults in a Washington Post/ABC News nationwide poll last month said they favored background checks for people buying guns at guns shows or online, a poll by the same news organizations found that only 64 percent said they supported a program giving illegal immigrants the right to live here legally if certain requirements were met.


The warning does not mean failure, especially since most Republicans believe that immigration changes, unlike gun legislation, would help them politically. But it does indicate that the road to consensus on immigration will be far bumpier than the narrative on Capitol Hill suggests.


“There was a lot of Washington talk about the gun bill’s possibilities, but I never saw that reflected in the people at home,” said Representative Jack Kingston, Republican of Georgia, who has served since 1993. “Now there is all this buzz about the immigration reform, and that is not reflected, either.”

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