5th Circuit upholds injunction against President Obama’s Executive Memoranda
The 5th Circuit issued a permanent injunction against the 2014 Executive Actions by President Obama. (Nov 10, 2015)
Judge Jerry Smith issued the decision and was joined by Judge Jennifer Walker Elrod. The Majority decision mirrors the earlier decision affirming the grant of the Preliminary injunction. As is often the case, the interesting read is in the dissent.
The dissenting Judge, Carolyn King, argued that the 26 States that sued to stop the Exec. Actions (DAPA & DACA II) did not have “standing” to sue. 2 points from the dissent stand out: Firstly Judge King stated that the Majority grossly extended the States standing to sue, and secondly, they erred in denying the agency, DHS, authority ” to use its decades-long practice of granting “deferred action” to these individuals ” emphasis added. In reading the majority opinion, though, it’s the President’s decision to grant lawful status to an entire class of aliens, not on an individualized case- by-case basis, that the States and the Majority objected to.
A key issue was whether States have standing to sue. The dissent cites a history of Supreme Court decisions which have limited the individual States of this Country the right to file suit in Federal Court to stop actions by the Federal Government. The dissent characterized as “The majority’s breathtaking expansion of state standing” that the States could challenge the President’s actions, and the “separation of powers” as prohibiting suit. The dissent doesn’t answer who has standing to challenge (if not the States) Executive authority and in what venue (if not Federal Court).
An additional and glaring omission from the discussion and the decision is what to make of an Executive Agency using a “memorandum” to change law, as opposed to an Executive Order.
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