U.S. Court of Appeals Denies Stay of Preliminary Injunction in State Challenge to Presidential Executive Order Powers on Immigration
PIERRE, S.D. – Attorney General Marty Jackley announced on Tuesday that U.S. 5th Circuit Court of Appeals has denied the Obama administration’s request to begin implementation of his suspension of immigration laws. South Dakota joined 26 State Attorneys General and Governors in December 2014 in a lawsuit challenging the executive action set forth by President Obama, which exceeds his authority on immigration reform.
“This case is about following the rule of law. The President’s unilateral action would have forced the States to expend substantial resources on law enforcement, healthcare, and education without any voice. It is time for Washington to have a meaningful discussion on immigration reform that addresses the workforce needs of the States and immigrants as well as our national security,” said Jackley.
On November 20, 2014, the President of the United States announced that he would unilaterally suspend immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States. In addition, the Secretary for the Department of Homeland Security (DHS) issued a directive that legalizes the presence of approximately 40% of the known undocumented immigrant population, and afford them legal rights and benefits. The Federal Court has enjoined the President from “implementing any and all aspects or phases of the expansions.”
The States argued the President was abdicating his responsibility to faithfully enforce laws that were duly enacted by Congress and attempting to rewrite laws, which he had no authority to do – something the President himself had previously admitted. This executive action conflicts with the President’s constitutional duty to “take care that the laws be faithfully executed.” There was no cost to South Dakota in joining the State challenge which was led by Texas Attorney General.
-30-
This Fifth Circuit opinion is not conclusive, but it does suggest a departure from the current regime of separation of powers, insofar as the Judicial branch usually assumes that the Executive and Legislative branches says what it means. This opinion basically tells the Executive, “Listen, I know you *say* that this is case-by-case, and that it’s guidance, but we just don’t believe you. Now, hold my beer and watch us turn contemporary Admin law upside down.”
If the Executive creates internal guidance, that calls for a step by step, then the Courts are in no position to interject and hold, without further evidence, that the Executive doesn’t mean what it says. With regard to Leg/Jud separation: Recall back to the recess appointments case, where, even though the Senate was clearly not meeting, it was meeting “on the books,” and the Court stated that it must take them to mean what they say, and not inquire into whether or not they are *actually* conducting business.
Furthermore, this is the first time that internal guidance on prosecutorial discretion has been held to be a legislative rule that requires Notice and Comment, which would have the practical effect of making any sort of coherent prosecutorial regime within an agency a nightmare, because every single document would have to undergo Notice and Comment, subsequent judicial appeals, etc. You would wind up with a situation where all prosecutorial discretion becomes unofficial, backroom, secret, and contrary to the entire point of the APA, which is to make sure that the public knows what is going on. This Fifth Circuit opinion has the perverse incentive to maintain secrecy and destroy transparency.
“This Fifth Circuit opinion…”
It’s not an “opinion”–it’s a ruling on the lower court’s injunction. An “opinion” would be a definitive statement on the merits (substantive and procedural) of the case.
Enough with your pseudo legal blurbs..
So argue against it, then, if I’m wrong.
When you use the WRONG language (because you do not understand the legal issues) , no “argument” can make it “right”.
” but it does suggest a departure from the current regime of separation of powers, ”
No it does not. Hanen was clear: Obama likely failed to follow the APA–a statute.
“insofar as the Judicial branch usually assumes that the Executive and Legislative branches says what it means.”
Hanen found nothing of the sort. You just made that up. Hanen found that the executive branch [likely] failed to follow the rules imposed by the APA. There was nothing about the other branches saying what it means.
“, this is the first time that internal guidance on prosecutorial discretion has been held to be a legislative rule that requires Notice and Comment,”
No, this is ANOTHER time that the courts have found that final rule making requires adherence to the APA.
“This Fifth Circuit opinion has the perverse incentive to maintain secrecy and destroy transparency.”
NO NO AND NO! Hanen’s ruling (as upheld) is ALL ABOUT OPENNESS and following the APA (a statute). It’s just the OPPOSITE as you claim!
ENOUGH NONSENSE cloaked as legal reasoning.