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Obama’s immigration executive actions on hold until legal challenge is resolved

President Obama's executive orders on immigration are stalled. His signature immigration plan, which would grant work permits and deportation protection to millions, suffered a major blow when a federal court refused to allow it to take immediate effect. Gwen Ifill discusses what all of this means with Stephen Legomsky of the Washington University School of Law and Alan Gomez of USA Today.

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  • GWEN IFILL:

    President Obama's signature immigration proposal suffered a major blow this week, when a federal court refused to allow his plan to take immediate effect. It would grant work permits and deportation protection to millions of undocumented residents; 26 states sued to stop that executive action. The Justice Department decided not to appeal directly to the Supreme Court, but will try to make its case to an appeals court in July.

    But, for now, everything is in limbo.

    Here to discuss that state of affairs is Alan Gomez, who covers immigration reporter for USA Today, and Stephen Legomsky, professor of law at Washington University in Saint Louis.

    Professor Legomsky, how big a setback is this court decision for the administration?

    STEPHEN LEGOMSKY, Washington University School of Law: Well, it's a temporary setback. The government appealed Judge Hanen's injunction, but recognizing that appeals can take a long time to decide, the government asked the court of appeals if it would at least temporarily stay Judge Hanen's decision until the court had a chance to decide the appeal.

    So the opinion on Tuesday was a decision by a 2-1 vote not to grant the temporary stay. However, the appeals court has announced just today that it plans to hear oral arguments on the main appeal on July 10. And the government, of course, is hoping that the court will hand down a decision as soon after that as possible.

    So, if it does, then we could have a decision in the next few months, and this setback will prove not to be too terrible.

  • GWEN IFILL:

    Now, Alan Gomez, you spent a fair amount of time talking to people who got their hopes up, then get their hopes down about the president's plans for immigration reform. How is this affecting them?

  • ALAN GOMEZ, USA Today:

    Well, it's just another really big hit for them.

    It was back in February when Judge Hanen in Brownsville, Texas, put the first stop on this program. He did it a day before it was supposed to go into effect. So, imagine you had thousands of people around the country, these undocumented immigrants who had been collecting their papers, figuring out what they needed to apply to this program, and just the day before is when the program got blocked.

    So this is another big blow to them. As the professor was mentioning, there's going to be hearings in July, but whatever comes from that, the other side is expected to appeal to the Supreme Court. So it could be before the end of the year, maybe running into next year, before we get a final resolution of what is going on.

  • GWEN IFILL:

    Professor Legomsky, let's talk about those 26 states that filed suit. What are their grounds for trying to stop this? What is their argument?

  • STEPHEN LEGOMSKY:

    They make two arguments.

    One is a very technical procedural argument. There is a state called the Administrative Procedural Act, which says that certain government rules have to go through a fairly elaborate process, where you notify the public, get input and then make a final decision. The issue in this case is whether this case falls within an exemption to that for certain discretionary rules.

    They also argue that the president doesn't have the constitutional authority to set the enforcement priorities that he has. Two courts have already rejected those arguments, but Judge Hanen accepted them. And that does set up a possible circuit split and therefore a Supreme Court review, as Alan Gomez has said.

  • GWEN IFILL:

    But, Alan Gomez, they decided not to take this to the Supreme Court, at least not immediately. What is the strategy behind that and what is the argument that the administration then is prepared to make in these July appeals?

  • ALAN GOMEZ:

    Well, basically, we have two legal tracks going on right now.

    The first one is on the overall merits of the case, whether the president had the power to do this. The second one was just to hold it in place, basically, to stop the program in the meantime, while that first one ran its course. The Justice Department basically decided to go ahead and focus on that broader question, on that issue of, is this legal?

    And in their minds, they are thinking that they want a complete and total resolution. They don't want to temporarily start the program and then have to stop it again if another court rules that the entire program is unconstitutional. So, what they're trying do is get a final resolution so that when and if the program can go into effect, these millions of undocumented immigrants who would be applying will be confident that they can apply and that the program will continue and it won't be stopped by a court down the road.

  • GWEN IFILL:

    Professor, when the White House put out their statement yesterday in reaction to the court's ruling, they said that the courts had misinterpreted the facts and the law. Which facts and which law are we talking about from the White House point of view?

  • STEPHEN LEGOMSKY:

    Yes.

    Under the Administrative Procedure Act issue that I mentioned earlier — and that was the basis for Judge Hanen's decision — everything turns on whether true discretion is being exercised. Judge Hanen decided that because there was a fairly high approval rate for these cases, about 95 percent, it must be true that no discretion is being exercised.

    The government, for its part, points out that if you are undocumented and if, in addition, you have something negative in your background, then the last thing you're going to do is initiate contact with the government and say, here is my name, here is my address, this is my history, and here are my fingerprints, so you can do a background check on me.

    In addition, you're unlikely to want to pay $465 for a benefit you're not likely to receive. So, the government's point is that of course there will be a very high approval rate because this is a very self-selected population.

  • GWEN IFILL:

    Alan, you're in Florida, where there are two candidates for president who hail from there. There's obviously a political resonance as well to the ups and the downs of this issue. Where does that stand tonight?

  • ALAN GOMEZ:

    Well, basically, the longer that this case goes through the courts, the more it becomes a 2016 presidential issue.

    As you mentioned, former Florida Governor Jeb Bush, Florida Senator Marco Rubio are both from here, and they like every other Republican candidate are very much opposed to what the president did in trying to protect these undocumented immigrants through his executive action.

    On the other hand, you got Hillary Clinton who came out very strongly recently, not only supporting this program, but saying that she wanted to protect even more undocumented immigrants. So, basically, if we get a ruling on this some time this year, you're going to have those two sides, either Republicans — basically, they're going to have laid down their thoughts on this.

    And it is going to come at a time where a lot of Hispanic voters are going to be trying to make up their minds on who their candidate is. And, yes, Republicans pushing very, very hard to block the president's plan to protect undocumented immigrants, it's not exactly going to help them with the Hispanic population in this country.

  • GWEN IFILL:

    Right in the middle of the 2016 presidential election.

    Alan Gomez of USA Today and Stephen Legomsky of Washington University in Saint Louis, thank you both very much.

  • ALAN GOMEZ:

    Thank you.

  • STEPHEN LEGOMSKY:

    Thank you, Gwen.

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