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  by  Jeremy Beck

As the Obama administration continues to take public comments on its proposal to expand a foreign worker program never approved by Congress, another court has ruled to protect Congress' right to preserve American jobs for the legal workforce.

Media Roundup

Politico:

A federal appeals court has rejected President Barack Obama's effort to move forward with a series of executive actions he announced last year seeking to give quasi-legal status and work permits to millions of undocumented immigrants.

The court's ruling comes just hours after Politico reported that Senator Bernie Sanders promised  "to take extensive executive action to accomplish what Congress has failed to do and to build upon President Obama's executive orders." Hilary Clinton made the same promise earlier this summer.

USA Today reports that a key issue in the case is whether Obama's program is just a matter of setting enforcement priorities, or if it takes the additional steps of bestowing benefits: 

In his ruling Monday night, Circuit Court Judge Jerry Smith said Obama's program "would allow illegal aliens to receive the benefits of lawful presence solely on account of their children's immigration status, without complying with any of the requirements ... that Congress has deliberately imposed." He was joined by Judge Jennifer Walker Elrod.

Their ruling said the program 
"would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress's stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country."

Judge Carolyn Dineen King dissented, arguing that the deferred action program was an "exercise of prosecutorial discretion" beyond the reach of federal court judges. She also criticized her court for stalling well beyond its normal 60-day period of review.

Despite King's dissent, the majority view was that the executive action was about "much more than nonenforcement"

The Texas Tribune hits on a second important point: While the injunction would block benefits such as driver's licenses, work permits, and social security numbers - the administration retains its ability to choose nonenforcement at its discretion: 

The panel also rejected the administration's argument that halting the program would harm the administration's ability to prioritize its resources.

"Separately, the United States postulates that the injunction prevents DHS from effectively prioritizing illegal aliens for removal. But 
the injunction 'does not enjoin or impair the Secretary's ability to marshal his assets or deploy the resources of the DHS [or] to set priorities,'" the opinion states. 

To be clear: the court injunction does NOT force the administration to deport anyone. So when Reuters and others suggest the administration can no longer "shield millions of undocumented immigrants from deportation," they are misleading their readers.

The court didn't rule against the administration's ability to choose when to not deport someone. According to the Sacramento Bee, the court took exception to the administration taking "an action to change the law," as President Obama himself put it: 

"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.

In non-legal speak, NPR says: 

...the Immigration and Naturalization Act of 1952 expressly lays out how and when an immigrant can legally remain in the country. The president, the court ruled, cannot unilaterally change that, even if Congress refuses to enact new immigration laws.

Politico notes a third key aspect of the case: 

U.S. District Court Judge Andrew Hanen's February order blocking the actions nationwide was issued on a fairly technical ground: that the changes to immigration procedures were so significant that the administration needed to put them out for official notice and comment before moving forward.

Avoiding public comment has become something of a pattern for the Obama administration, which was recently forced by another court to put its proposed OPT rule change before the public. 

The Atlantic explains how the 26 states were able to push the case this far:

Since the Constitution grants exclusive power over immigration law to the federal government, the states' lawsuit might seem quixotic. To circumvent this, Texas and the other states contend that by granting deferred action to an estimated five million undocumented immigrants, the Obama administration's executive actions force the states to either provide services to them or change their state laws to avoid doing so. Texas, the only state whose standing was explicitly recognized by the court, specifically argued that the immigrants' "lawful presence" would require the state to provide them with "state-subsidized driver's licenses"and unemployment insurance.

The Wall Street Journal says time is running out for the Supreme Court to hear the case before Obama leaves office: 

The government is working against the clock and will have to act quickly to have a chance at getting the case heard in the current term, which runs until the end of June 2016. The court, which schedules arguments in appeals from October to April each term, needs to receive the appeal and get briefs from both sides before deciding whether to accept the case. Any delay would likely push the case into the next term and past the presidential election.

The New York Times says there is still time for President Obama to win the case before his term is up, but the window is small: 

If the Fifth Circuit court had waited too long to allow an appeal to the Supreme Court, Mr. Obama's hopes of carrying out his program before he leaves office in 2017 would have all but ended. As it stands, if the Supreme Court overturns the lower-court rulings, the administration would have only a few months to begin signing people up.

Marielena Hincapia, the executive director of the National Immigration Law Center, said that while the appeals court ruling might be seen as another defeat for her cause, "the silver lining is that this is just in the nick of time for the administration to go to the Supreme Court."

The Obama administration appealed the ruling to the Supreme Court today.

JEREMY BECK is the Director of the Media Standards Project for NumbersUSA

Updated: Tue, Nov 24th 2015 @ 2:30pm EST

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