Editor’s Note: Asking the Federal Government to “rule” on how much power the federal government has makes no sense. It is a diversionary tactic at best from the real solution. Former Tennessee State Senator David Fowler, attorney and now President of the “Family Action Council of Tennessee” has the right idea and is now looking for support from individual Tennesseans to sign a petition to the Tennessee General Assembly and for City Councils and County Commissions to pass resolutions to encourage the General Assembly to take action on it. Find Details HERE
On Monday night, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit struck a blow to President Barack Obama’s attempt to confer lawful presence and work authorizations on more than four million illegal immigrants.
In a 2-1 decision, the panel ruled that a preliminary injunction that blocks Obama’s “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) from going into effect must stand.
Obama’s Executive Action on Immigration
After Congress refused to pass the DREAM Act at least two dozen times between 2006 and 2011, Obama decided to bypass Congress all together and “change” the law by executive fiat.
In 2012, the administration created the Deferred Action of Childhood Arrivals (DACA), enabling 1.7 million illegal aliens under 30 years old brought to the U.S. as children to apply for work authorization and deferred deportation. Then in 2014, DACA was expanded by, among other things, eliminating the age cap and increasing the term of deferred action and employment authorization from two to three years.
The administration also created DAPA, conferring deferred action on illegal aliens whose children are U.S. citizens or lawful permanent residents, provided no other factors make deferred action inappropriate. In addition to lawful presence, DAPA grants deferred-action recipients benefits such as work authorizations, driver’s licenses, Social Security, and other government benefits, costing an estimated $324 million over the next three years according to the district court.
Texas and 25 other states challenged DAPA, alleging that it violates the Constitution’s Take Care Clause and the Administrative Procedure Act (APA). A federal district court held that DAPA violated the APA’s notice-and-comment requirements and preliminarily stopped the Department of Homeland Security from implementing “any and all aspects or phases” of DAPA. Earlier this year, the Fifth Circuit denied the United States’ request for an emergency stay.
Court Finds States Can Sue Obama Administration Over Immigration Action
On Monday, the appeals court upheld the district court’s preliminary injunction, finding that Texas has standing to sue, and the states established a substantial likelihood of success on their claims that DAPA violated the APA. The court did not rule on the constitutional issue.
The court found that Texas has standing to sue—meaning it has an injury that is “fairly traceable” to DAPA—because DAPA would enable at least 500,000 illegal aliens to receive subsidized Texas driver’s licenses, at a cost of $130.89 per license, which would end up costing the state millions of dollars. While the administration asserted that DAPA beneficiaries would then generate income for Texas by registering their cars and buying car insurance, the panel refused to accept this because “[w]eighing those costs and benefits is precisely the type of ‘accounting exercise,’ in which we cannot engage.”
The administration also argued that Texas could change its laws to avoid paying for the licenses. The panel noted:
[T]reating the availability of changing state law as a bar to standing would deprive states of judicial recourse for many bona fide harms….[S]tates could offset almost any financial loss by raising…