海角大神

The ability of a US President to use government discretion to achieve major real-world outcomes became聽on Friday聽the heart of a wide-ranging legal discussion at the 5th Circuit Court of Appeals in New Orleans, which is weighing whether to lift an injunction against an Obama executive action designed to give 鈥渓egal presence鈥� to up to half of the nation鈥檚 11 million undocumented immigrants.

Skepticism from two conservative judges at the court聽on Friday聽suggested that the three-judge panel may leave a聽Feb. 18聽injunction in place until the courts can untangle the legalities stemming from President Obama鈥檚 executive action announcement last November.

The injunction came from Federal District Court Judge Andrew Hanen in Brownsville, Texas, who halted the plan after finding the administration didn鈥檛 give Americans proper notice and the chance to comment on such a major policy shift.

Given the legal roadblock, the big question outside the downtown New Orleans courtroom is whether Obama鈥檚 directives will turn out to have meaningful impact before he leaves office in just under two years.

聽But the testimony also addressed important legal and philosophical questions that may clarify the issue for those who are conflicted about the net costs and benefits of bringing undocumented America into the light.

At the very least, the hard-driving testimony and quizzical judicial cross examination in New Orleans聽on Friday聽seemed to confirm that Obama鈥檚 actions have spurred the country to confront the human and economic burden of undocumented immigration in a new and serious way.

鈥淭he stakes are high and tensions are high, there鈥檚 a lot of emotion, and everybody is watching,鈥� says Kevin Johnson, dean of the law school at the University of California, Davis.

In 2012, Obama bucked Congress鈥� refusal to craft meaningful immigration reform by ordering sweeping changes to how Immigration and Customs Enforcement (ICE) applies prosecutorial discretion to deportation cases, giving undocumented immigrants who came to the US as children a chance at legal standing.

In November, Obama announced an expansion of that plan, allowing a three-year deportation deferral for undocumented immigrants who don鈥檛 have a criminal record, have lived in the US for at least five years, and have an American-born child.

So far, the US has issued Social Security cards to over half a million 鈥渄reamers鈥� under the 2012 Deferred Action for Childhood Arrivals (DACA), and just over 100,000 others have applied for but have not received deferral under the new program, Deferred Action for Parents of Americans (DAPA).

In response to DAPA, 26 states, led by Texas, sued in Judge Hanen鈥檚 court for relief, saying Obama鈥檚 actions would dramatically increase the burden on states.

聽鈥淒APA would be one of the largest changes in immigration policy in our nation鈥檚 history,鈥� Texas Solicitor General Scott Keller told the court. 鈥淎ny injury that the executive could show would not outweigh the irreversible harm of changing the status quo by allowing DAPA to go into effect.鈥�

For their part, government lawyers argue that states can鈥檛 be interlopers in an argument between Congress and the President on matters of immigration, which they say is solely a federal task. (In a separate amicus brief, 13 states, including California and Virginia, voiced support for the Obama initiatives.)

The enormity of the benefits offered by the President has belied questions around the limits of Executive Branch power.聽Judges聽on Friday聽treaded onto that ground.

For example, Judge Jennifer Elrod, a George W. Bush appointee, used Obama's own words to illustrate a problem with the program. She questioned Department of Justice contentions that immigration agents would retain case-by-case discretion when looking at deferral applications.

Judge Elrod thought that jarred with Obama鈥檚 statement at a February town hall in Miami that agents would face consequences if they buck his orders to give deferrals to everyone who is eligible.

聽鈥淲hen [the President] gives affirmative statements that you are entitled to relief 鈥� is that puffery?鈥� Judge Elrod wondered, adding she meant no disrespect to Obama with her question.

But Judge Stephen Higginson, an Obama appointee, noted that undocumented immigrants are the ones taking the main risk by coming forward, which proves that case-by-case prosecutorial discretion will continue.

The deferred action program, in effect, asks undocumented immigrants to trust the very agency that seeks to deport them as they are 鈥渢elling us where they are,鈥� argued Judge Higginson. 聽鈥淚t is scary for them. It is precarious to identify 鈥� We鈥檙e finding the fugitives.鈥�

In the end, the legal question in front of the 5th聽Circuit may come down to an issue of expediency, especially since it would be difficult to rescind benefits from deferred deportees if a court later finds Obama鈥檚 actions unconstitutional. The Obama administration has continued to take deferral applications, but is refraining from extending benefits.

Given skepticism from judges聽on Friday, the Obama administration鈥檚 best chance at lifting the injunction may come from the US Supreme Court, which can still be asked to make an emergency intervention in order to allow the program to go forward while the legalities are untangled.

But for now, millions of undocumented immigrants remain in limbo between the courts and Obama鈥檚 promises.

鈥淲e鈥檙e big about the status quo,鈥� said Judge Elrod. 鈥淚t appears the Supreme Court may be big about [preserving] the status quo in the middle of cases.鈥�