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5th Cir. Knocks Down Immigration Reform, for Now

By Casey C. Sullivan, Esq. on November 18, 2015 | Last updated on March 21, 2019

President Obama's immigration reform plans won't be coming to fruition anytime soon, thanks to a recent ruling by the Fifth Circuit. The court recently upheld an injunction against the immigration changes, finding that the Obama Administration was unlikely to win on the merits.

Twenty-six states, led by Texas, had sued over the planned immigration overhaul, which would have provided work visas and halted deportations for millions of immigrants. Despite the central role of the immigration debate in the lawsuit, however, the Fifth's ruling primarily dealt with standing and administrative law.

Can States Sue the President Over Immigration?

In 2013, after immigration reform failed in Congress, President Obama announced that he would take executive action to deal with the immigration controversy. His plan, Deferred Action for Parents of Americans, sought to provide a path for citizenship to many undocumented immigrants and to focus deportation efforts on those with criminal records. The administration justified the action as supported by the executive branch's control over the enforcement of laws.

More than half the states sued, arguing that the president had greatly overstepped his authority. One of the main questions before the Fifth Circuit was whether those states even had standing to sue. After all, while the governors of Texas and Arizona might be opposed to the immigration plan, but in what way would they be injured?

Through driver's licenses, it turns out. The fact that Texas would "incur significant costs in issuing driver's licenses to DAPA beneficiaries," Judge Jerry Smith wrote for the majority, satisfied the standing inquiry's injury requirement. Further, the Fifth explained, under Massachusetts v. EPA, the court must grant a "special solicitude" to quasi-sovereign states.

Where's the Notice and Comment?

Further, the court found, the Obama administration had enacted significant changes to immigration rules without undergoing the proper procedures. Under the Administrative Procedure Act, federal rule making must be put up for public notice and comment -- and often years of litigation. DAPA did not meet those requirements.

The administration had argued that DAPA was exempt from the constraints of the APA, as it was a mere policy statement, not a rule change. The government was simply changing its policy towards existing immigration law, not creating new federal rules, they argued. The Fifth was not convinced. To be an APA-exempt policy statement, DAPA would need to allow greater discretion in its implementation, the court ruled.

Onwards to the Supreme Court

The Obama administration quickly announced that it would petition the Supreme Court for review and it's unlikely that they will let the opportunity pass. We're likely to see oral arguments in spring and a decision by the end of June -- just in time for the height of election season.

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