As JD noted last night, a panel of the Fifth Circuit yesterday upheld the temporary injunction halting Obama’s amnesty. Basically, the judges said that Obama could exercise prosecutorial discretion and not prosecute/remove certain aliens deemed a lower priority, but probably could not deem them to be here lawfully such that they could obtain work permits, driver’s licenses, and other privileges of those here lawfully.
I read through the opinion last night and was struck by a couple of passages. In this one, the majority judges noted language in the amnesty decree that purported to make the amnesty discretionary and “case by case” — but said, in essence, that this language was disingenuous: designed to make it seem discretionary when it actually is not:
The agency’s characterization of both the DACA and DAPA criteria exudes discretion—using terms such as “guidance,” “case-by-case,” and “prosecutorial discretion.” But a rule can be binding if it is “applied by the agency in a way that indicates it is binding,” and the states offered evidence from DACA’s implementation that DAPA’s discretionary language was pretextual.
That’s a nicer word for disingenuous, which itself is a nicer word for “bullshit” — but you get the point. In this regard, the court (as had the trial judge below) noted that Obama had declared that he wouldn’t even go after people who don’t qualify for the amnesty:
Although a person who expected to be denied DACA relief for discretionary reasons would be unlikely to apply, the self-selection issue is mitigated by the district court’s finding that “the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances).” Texas, 2015 WL 648579 at *50.
Finally, in a passage that seems to be little remarked upon, the judges chided the Justice Department for arguing two opposite positions in separate cases:
[The government] claims a stay would improve public safety and national security, provide humanitarian relief to the family members of citizens and lawful permanent residents, and increase tax revenue for state and local governments. To the contrary, however, and only by way of example, on March 16, 2015, the Attorney General, in opposing a motion to stay removal in an unrelated action, argued to this very panel that “granting a stay of removal . . . would impede the government’s interest in expeditiously . . . controlling immigration into the United States.” Presumably, by referring to “the government’s interest,” the United States is referring to “the public interest.”
In other words, in a recent case, the federal government took the position that they wanted to remove someone from the country, and the court should not issue a stay of that removal because, hey, we have to control immigration. But in the topsy-turvy world of defending amnesty, where the Justice Department is forced by politics to defend a Presidential position that runs exactly counter to enforcing immigration laws, the government says the exact opposite: you need to let us keep people here even if maybe they are illegal, because of all the wonderful benefits we receive from their presence in the country.
The fact that both these arguments were made to the same panel of judges is just a bonus.
It was subtle, but the decision yesterday amounted to the judges calling B.S. on Obama’s lies.