Patterico's Pontifications


Don’t Get Too Excited About That Fifth Circuit Case on Obama’s Amnesty

Filed under: General — Patterico @ 7:39 am

You may have heard about a case pending in the Fifth Circuit challenging Obama’s amnesty for “dreamers.”

Don’t get too excited about it.

First, let’s set the stage. Allahpundit, commenting on Obama’s grand plan to raise taxes through executive action (about which more here) says:

All that said, this is actually good news. The more Obama abuses his authority, the more seriously I suspect the five conservatives on the Supreme Court will take that amnesty lawsuit that’s trickling its way up through the Fifth Circuit. The further rogue Obama goes, the more pressure the Court’s majority may feel to wade into this and pull him back. Here’s hoping, because lord knows Congress won’t do anything to stop him.

What is this mysterious Fifth Circuit case? In November, the D.C. Caller reported:

Congressional leaders and state attorneys general looking to use the courts to block Obama’s latest amnesty decree need to remember that much of the work was already done in April of last year. Although forced to dismiss the case for lack of jurisdiction, Judge O’Connor of the Northern District of Texas found that ICE union chief Chris Crane and 9 other ICE agents were “likely to succeed on the merits of their claim in challenging [deferred action for childhood arrivals (DACA)] as contrary to the provisions of the Immigration and Nationality Act.”

Although the Court found that the Civil Service Reform Act stripped it of the jurisdiction to decide federal employee disputes, Judge O’Connor’s ruling lays out the arguments that plaintiffs with firmer standing could use in their efforts to overturn Obama’s unconstitutional decree.

I decided to look up the audio for the oral argument, which I listed to recently, and which you can listen to here.

I’m the guy who told you that the panel was going to rule against Obama in Halbig, based on listening to the oral argument. Unfortunately, I have to be the guy to tell you that — unless I am interpreting the argument incorrectly — the Fifth Circuit is probably going to rule for Obama here.

I won’t spend a long time with the details. The judges are Carolyn King, W. Eugene Davis, and Priscilla Owen. There are two issues: standing and the underlying validity of Obama’s order.

It was my impression that the court could go either way on standing, but was leaning towards granting standing, based on the argument that the plaintiffs’ alternate remedies were illusory. It was not clear whether they accepted the argument that not deporting illegals led to greater impositions on state resources.

On the underlying issue of the validity of Obama’s order, however, the judges seemed very concerned about prosecutorial discretion. The plaintiffs’ lawyer said that the law is crystal clear that notices to appear must be issued to illegal aliens, and argued further that discretion to dismiss such notices to appear was limited by statute to situations where the notice was improvidently issued or otherwise not merited by the statute. The judges, by contrast, seemed to think that prosecutorial discretion not to remove was very broad. They seemed impatient with the distinction that the notices to appear must be issued, if in the end, removal is a matter of prosecutorial discretion.

One of the judges also argued that Congress has never provided sufficient funding for the statute to be enforced by the letter of the law. The plaintiffs’ lawyer’s response provided interesting insight into how enforcement works in this area. He said ICE agents are typically not in the field looking for illegals. Instead, they are sitting at their desks, looking for leads. A flow of leads comes across their desk, but under this policy, they can’t follow up on many of the leads that come to them.

The judges didn’t seem persuaded. Apparently, the Supreme Court’s support of prosecutorial discretion is very strong.

I think prosecutorial discretion will be the theme of the opinion, and Obama is going to win this case.

I hate to be the one to have to tell you.

UPDATE: The Davis hearing this case was W. Eugene Davis, not Jerry Davis. The post has been corrected.

11 Responses to “Don’t Get Too Excited About That Fifth Circuit Case on Obama’s Amnesty”

  1. Ding.

    Patterico (9c670f)

  2. writing as a person who believes jury nullification is a valid tactic (calm down Patterico, it is early in the day yet) do we really want the judiciary to rule that prosecutors have next to no discretion? This doesn’t mean that a Governor or PotUS could direct all prosecutors that certain crimes are to be ignored, but i can think of plenty of times where a prosecutor would choose not to take action due to prioritization or circumstances of the particular situation.

    seeRpea (3383a9)

  3. The courts are all we have left so I hope you’re wrong. Ted Crus told us in December that the fix was in and GOP leaders planned to cave on amnesty, the DOJ nominee, etc. Allahpundit agrees the GOP cares more about opposing the base than Obama and the Democrats. Shameful losers, every one of them.

    DRJ (e80d46)

  4. When Congress votes to fully fund DHS any assertion that Obama’s executive actions are against the express will of Congress goes bye-bye.

    crazy (cde091)

  5. Voting for republicans has to be the biggest hoax since hope and change.

    mg (31009b)

  6. As far as I am concerned, there is a line to cross about prosecutorial discretion.

    It’s one thing to choose not to prosecute someone.

    It’s another thing to hand them a document saying that they are free from the possibility of prosecution because of prosecutorial discretion. And then hand them further benefits based on that.

    Not being a lawyer, correct me if I’m wrong here. If the prosecutor drops a case because of prosecutorial discretion, 1. does he give up all right to pursue it if something worse happens
    and 2. does the defendant get a piece of paper saying he can’t be arrested for it in the future?

    luagha (e5bf64)

  7. The following 75 GOP Congresspeople voted AYE for the Homeland Security bill, The 167 votes against were from real Republicans. The RINO list:

    1. Benishek
    2. Bishop (Mich.)
    3. Boehner
    4. Bost
    5. Brooks (Ind.)
    6. Buchanan
    7. Calvert
    8. Carter (Texas)
    9. Coffman
    10. Cole
    11. Collins (N.Y.)
    12. Comstock
    13. Costello (Pa.)
    14. Curbelo (Fla.)
    15. Davis, Rodney
    16. Denham
    17. Dent
    18. Diaz-Balart
    19. Dold
    20. Ellmers (N.C.)
    21. Emmer (Minn.)
    22. Fitzpatrick
    23. Frelinghuysen
    24. Gibson
    25. Granger
    26. Guinta
    27. Hanna
    28. Hardy
    29. Heck (Nev.)
    30. Hurd (Texas)
    31. Jolly
    32. Katko
    33. King (N.Y.)
    34. Kinzinger (Ill.)
    35. Kline
    36. Knight
    37. Lance
    38. LoBiondo
    39. MacArthur
    40. McCarthy
    41. McCaul
    42. McHenry
    43. McMorris Rogers
    44. McSally
    45. Meehan
    46. Miller (Mich.)
    47. Moolenaar
    48. Murphy (Pa.)
    49. Noem
    50. Nunes
    51. Paulsen
    52. Pittenger
    53. Pitts
    54. Poliquin
    55. Reichert
    56. Rogers (Ky.)
    57. Ros-Lehtinen
    58. Royce
    59. Ryan (Wis.)
    60. Scalise
    61. Schock
    62. Shimkus
    63. Simpson
    64. Smith (N.J.)
    65. Stefanik
    66. Stivers
    67. Thompson (Pa.)
    68. Tiberi
    69. Trott
    70. Turner
    71. Upton
    72. Valadao
    73. Walden
    74. Walters, Mimi
    75. Young (Ind.)

    Kevin M (56aae1)

  8. Patterico,

    How does prosecutorial discretion extend to granting work permits? I would think “declining to prosecute” has limits. Actively abetting the activity is quite different than ignoring it.

    Kevin M (56aae1)

  9. A prosecutor might, for some crazy reason, decline to prosecute a man who repeatedly drives drunk without a license, but I’m pretty sure he cannot order the DMV to issue the man a license and order bars to give him booze for free.

    Yet that is about what the President is doing here.

    Kevin M (25bbee)

  10. Well, I couldn’t believe Roberts would call Obamacare a tax, so if the 5th Circuit decides the States have no standing to challenge the lawlessness of executive ordering DACA, I can’t be too surprised.

    Steve Malynn (6b1ce5)

  11. How does prosecutorial discretion extend to granting work permits? I would think “declining to prosecute” has limits. Actively abetting the activity is quite different than ignoring it.

    I believe that this case does not challenge the most recent amnesty, but rather the Dreamer version you love, which attracted all the kids to the border. So work permits aren’t an issue.

    Patterico (9c670f)

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