Nothing But Good News from 5th Circuit Court of Appeals Obamnesty Decision
Patriots should cheer the ruling by the 5th Circuit Court of Appeals that prevented an injunction on Obama’s unilateral amnesty from being lifted. Even better, there are two hidden gems in the decision that bode well for the future.
First, the decision endorses the use of the term “illegal alien.” The text of the decision uses illegal alien consistently and in an explanatory footnote defends the use of the term as the proper way to describe these people in the English language, specifically in a footnote on page 5. The footnote reads:
There is some confusion?not necessarily in this case but generally?regarding the proper term for non-citizens who are in the United States unlawfully. The leading legal lexicographer offers the following compelling explanation:
The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as near gobbledygook.
The problem with undocumented is that it is intended to mean, by those who use it in this phrase, “not having the requisite documents to enter or stay in a country legally.” But the word strongly suggests “unaccounted for” to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning. More than one writer has argued in favor of undocumented alien . . . [to] avoid[ ] the implication that one’s unauthorized presence in the United States is a crime . . . . But that statement is only equivocally correct: although illegal aliens’ presence in the country is no crime, their entry into the country is. . . . Moreover, it is wrong to equate illegality with criminality, since many illegal acts are not criminal. Illegal alien is not an opprobrious epithet: it describes one present in a country in violation of the immigration laws (hence “illegal”).
BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (citations omitted).
[State of Texas, et. al. v. United States, No. 15-40238, by Judge Jerry Smith, Judge Jennifer Elrod, for the Majority, and Judge Stephen Higginson, Dissenting, In The United States Court Of Appeals For The Fifth Circuit, May 26, 2015]
Second, in another footnote, the judges open up a new way to attack the DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of Americans) amnesties. The court ruled that immigration law enforcement officers have no discretion to apply Obama’s amnesty policy. This is important because the Obama Administration maintained immigration law enforcement officers did have discretion and wouldn’t be punished if they refused to implement amnesty. If immigration law enforcement officers don’t have discretion and will be punished if they actually enforce the law, then they have standing to file a lawsuit against the Administration.
And that’s just what the court found.
In fact, the 5th Circuit essentially reversed its own decision that previously denied standing to law enforcement officers. Earlier this year, the same 5th Circuit Court had dismissed the lawsuit by Chris Crane, President of the National Immigration and Customs Enforcement Council (NICEC), the union representing U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations (ICE ERO) personnel, including Deportation Officers (DO) and Immigration Enforcement Agents (IEA), as well as administrative personnel. Crane’s group had been doing yeoman’s work fighting the Obama Regime Administrative Amnesty, but lost in this case.
The 5th Circuit Court of Appeals ruled the ICE Agents and the State of Mississippi lacked standing to sue over the Deferred Action for Childhood Arrivals (DACA) program President Obama set up in 2012, Politico reports. Upholding a district court ruling, a three-judge panel of the 5th Circuit said the plaintiffs’ argument that the program would cause them harm was speculative.
The court’s opinion said “The district court held that Mississippi’s alleged fiscal injury was purely speculative because there was no concrete evidence that Mississippi’s costs had increased or will increase as a result of DACA. Based on the record before the district court, we agree…The unlikelihood of an agency sanction against an agent for exercising discretion expressly granted under [DACA] together with the fact that no sanctions — or warning of sanctions — have been issued for that exercise persuades us that the Agents are not under a “certainly impending” threat of an adverse personnel action that is sufficiently concrete and particularized to qualify as an injury in fact that gives Plaintiffs standing.”
Kris Kobach, the Kansas Secretary of State and attorney representing the ICE Agents, told the Dallas Morning News, “we disagree strongly that the injury is hypothetical. The only thing that is not concrete is the exact dollar amount…We will be seeking further review. Kobach said the plaintiffs may ask for an en banc ruling under which the full circuit court would re-examine the case.
[5th Circuit Dismisses Challenge Of 2012 DACA Amnesty By ICE Agents, Mississippi, NumbersUSA, April 22, 2015]
And, for the most part, the 5th Circuit was correct, at least if one views standing in a strict sense. There was no harm articulated by NICEC, as no member had been disciplined for not following the illegal orders from the Obama Regime, and the court evidently felt there wasn’t enough concrete evidence to prove the state of Mississippi would be harmed by Obama’s policy.
But in a footnote to the current case, the appellate court observes that the trial court has substantiated the facts supporting the previous claim by the NICEC that immigration law enforcement officers face discipline if they fail to carry out Obama’s illegal amnesty.
(5th Cir. 2015), which held “that neither the [Immigration and Customs Enforcement] Agents nor the State of Mississippi has demonstrated the concrete and particularized injury required to give them standing” to challenge DACA. Mississippi lacked standing because it failed to allege facts indicating that its costs had increased or would increase as a result of DACA. Id. at 252. The agents lacked standing because, inter alia, they had not alleged a sufficient factual basis for their claim that an employment action against them was “certainly impending” if they “exercise[d] [their] discretion to detain an illegal alien.” Id. at 254. That conclusion was informed by the express delegation of discretion on the face of the DACA Memo and the fact that no sanctions or warnings had yet been issued.
The trial court initially accepted at face value the promises from the Obama Administration that both DACA and DAPA policies allowed ICE and U.S. Citizenship and Immigration Services (USCIS) employees to retain discretion and deny some applications for amnesty. But the appellate court recognized as a matter of fact and law that the DACA and DAPA policies have no discretion in their administration, hence immigration law enforcement officers were under threat of discipline.
Furthermore, the court noted:
Extrapolating from the implementation of DACA, the district court determined that “[n]othing about DAPA ‘genuinely leaves the agency and its [employees] free to exercise discretion,’” a finding that is reviewed for clear error. Although the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, the court found that those statements were “merely pretext” because only around 5% of the 723,000 applications have been denied. “Despite a request by the [district] [c]ourt, the [g]overnment’s counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria . . . .” The court’s finding was also based on a declaration by Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that “DACA applications are simply rubber stamped if the applicants meet the necessary criteria,” id.; DACA’s Operating Procedures, which “contains nearly 150 pages of specific instructions for granting or denying deferred action,” id. at *55 (footnote omitted); and mandatory language in the DAPA Memo, id. at *39, *56 n.103. The agency’s characterization of both the DACA and DAPA criteria exudes discretion—using terms such as “guidance,” “case-by-case,” and “prosecutorial discretion.”
Cutting through the legalese, what this means is if a law enforcement officer denied amnesty, he or she would be punished and suffer irreparable harm if he or she refused illegal orders to implement the original DACA amnesty. These officers do not have discretion, therefore, they are under threat of discipline, therefore, these officers now have standing, and so the original NICEC lawsuit can be refiled.
So, all in all, wins in the long-term and short-term for patriots. The new question is—how will John Boehner and Mitch McConnell respond to this condemnation of the Obama Regime Administrative Amnesty by a Court of Appeals? There now is no question as to the illegality of Obama’s actions. Now Boehner and McConnell have cover from the courts to move forward with defunding the Obama Regime Administrative Amnesty. That also means they have no excuse not to move forward on defunding and impeachment.