The Obama administration’s lawyer, Benjamin Mizer, the acting assistant attorney general of the Civil Division at the Justice Department, did not have an easy time in his argument last Friday before a three-judge panel of the 5th Circuit Court of Appeals in the immigration lawsuit filed by 26 states.
He was questioned about all of the claims being made by the government, from the administration’s argument that the states don’t have standing to file a lawsuit to the assertion that everything President Obama has done is within the administration’s prosecutorial discretion.
The substantive merits of district court Judge Andrew Hanen’s Feb. 16 injunction order was not before the panel; just the government’s request that the 5th Circuit stay (or lift) the injunction while the appeal is pending.
Every seat in the courtroom was taken, and the court fed an audio of the arguments into two additional courtrooms, while pro-administration supporters protested outside the federal courthouse in New Orleans. Oral arguments before the 5th Circuit normally take 40 minutes, but the arguments on Friday lasted for two-and-a-half hours.
The Obama Administration’s Strange Logic
As I listened to Mizer responding to questions from the judges, I was shaking my head at some of his answers. One of his justifications for the president’s actions towards the beginning of the argument was so strange, I wasn’t sure I heard it correctly.
Judge Jerry Smith asked Mizer if the president’s plan wasn’t distinct from the “exercise of prosecutorial discretion” because it “confers benefits.” The plan, for example, provides not only deferred action to illegal aliens, but provides them with “Employment Authorization Documents” or work permits.
Mizer said there were “good reasons to grant” such permits because it would allow an individual with a work permit “to work on the books rather than off the books.” Since it is a “third-party crime” for an employer to employ an illegal alien, providing the work permits “is actually reducing crime by reducing the third-party crime.”
In other words, rather than enforcing federal immigration law that prohibits employers from employing any noncitizen who doesn’t have a work permit, it is better for the government (without authority) to issue work permits to illegal aliens so employers won’t break the law the administration doesn’t want to enforce. The government has to break the law so employers won’t have to.
That is an example of the twisted logic being used by the Justice Department to defend this case.
Case Won By EPA Helps States Opposing Obama’s Immigration Actions
Another issue brought up by Judge Smith was quite ironic, given the administration’s push on global climate change. While Mizer was arguing that the states have no standing to challenge the president’s immigration plan and his nonenforcement of federal immigration laws, Judge Smith pointed out that this case seems similar to Massachusetts v. EPA (2007).
In that case, the U.S. Supreme Court held that the states had standing to challenge the EPA’s then-nonregulation of so-called greenhouse gases. Based on that decision, the states would seem to have standing in this case according to Smith.
Obama Lawyer Stumped By Question About Precedent for Preserving Status Quo
Mizer also did not have a good answer to the argument made by Texas Solicitor General Scott Keller, who said that the injunction simply maintains the status quo on immigration law that has existed for decades.
Judge Jennifer Elrod said the court was “big about [preserving] the status quo” as was the Supreme Court “in the middle of cases.” She asked Mizer if it would not be a “logistical mess” if the 5th Circuit lifted the stay and the government proceeded with issuing work permits and tax benefits, but then the states ultimately won the lawsuit. Illegal aliens who are legalized by the president’s program “could end up with a big check and you’d need to knock on their door and ask for it back.”
Mizer’s only answer to that was that the government would be faced with “additional logistical steps” and illegal immigrants probably would not be able to collect tax credits during the time the courts were deciding this case because there are “a lot of hoops that an individual had to jump through.”
The Justice Department has also argued that even if the injunction is not lifted in its entirety, it should at least be geographically narrowed to only apply to Texas or the other states in the lawsuit. But when Judge Stephen Higginson asked Mizer if he had any prior court decisions that found a preliminary injunction was not narrowly tailored because it applied too broadly geographically, Mizer could not name a single case directly on point. Higginson said he had not been able to find a single case supporting that proposition either.
Was Obama’s Immigration Plan Really Not Subject to This Law?
Throughout his argument, Mizer kept saying that the president’s plan was unreviewable and was not subject to the Administrative Procedure Act (APA), which requires that all new regulatory policies by federal agencies be promulgated with advance notice and the opportunity for comment by the public and interested parties. This was a key finding in Judge Hanen’s injunction order.
Judge Elrod then asked Mizer a question related to this claim that almost had Mizer dancing a jig to avoid answering it. She asked Mizer whether the states could challenge the Deferred Action for Parents of Americans and Lawful Permanent Residents program if it gave “voting rights” to aliens: “would that be reviewable and would that be unconstitutional?”
Mizer clearly did not want to answer that question, saying that was not the situation before the court. “I’m asking you a hypothetical” insisted Judge Elrod. “Would that be subject to APA [Administrative Procedure Act] notice and comment if it gave voting rights or just substantively unconstitutional and illegal?” Judge Elrod asked Mizer again.
She had to ask Mizer the question four times before he finally said that it was “possible” that a challenge could be brought by the states under such circumstances, but that this situation was completely different. The fact that Mizer did not want to directly answer that question about voting and that Judge Elrod had to keep after him to try to get an answer was odd to say the least.
If the three-judge panel denies the government’s request for a stay, the Justice Department can file an emergency appeal with the U.S. Supreme Court. If the 5th Circuit (or the Supreme Court) grants the request, then there is no doubt that the administration will move as quickly as possible to implement the president’s amnesty plan while the case is pending in the 5th Circuit.
That would ensure that if the states were to ultimately prevail, trying to reverse what the Department of Homeland Security would do in the interim would be a “logistical mess.”
Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative.
Editor's Note: This piece was originally published by The Heritage Foundation.