Fifth Circuit strikes down challenge to Obama’s executive action

On April 7, 2015, the Fifth Circuit Court of Appeals dismissed a lawsuit challenging Pres. Obama’s 2012 original Deferred Action for Childhood Arrivals (DACA). This ruling is a good sign, because the very same Fifth Circuit Court of Appeals is set to hear an appeal of another lawsuit next week, which challenges the expanded DACA and DAPA Obama announced in November 2014. Let us hope the Fifth Circuit also throws out that challenge and allows DACA and DAPA to move forward.

This recent ruling recognized the federal government’s right and ability to “defer action” as well as exercise prosecutorial discretion in deciding whether or not to pursue removal proceedings against certain “low priority” people, such as DACA applicants. These same issues are involved in the pending case, where a Texas federal judge issued an order blocking the expanded DACA and DAPA.

The Fifth Circuit recognized that, “a principal feature of the removal system is the broad discretion exercised by immigration officials” on deciding whether or not to initiate removal proceedings. In other words, the Fifth Circuit recognized that exercising discretion in deciding who to deport is a valid exercise of the federal government’s powers. That is exactly what DACA and DAPA involve. The Fifth Circuit further emphasized that in order for a person or a state to sue the federal government, they must have suffered actual, direct injury or damage. The claimed injury may not be based on theory, hypothetical, or conjecture. (This recent case was brought by the state of Mississippi and certain ICE agents.)

The Fifth Circuit determined that Mississippi and the ICE agents did not suffer any legally recognizable damages as a result of Obama’s 2012 executive action. Mississippi’s claims of lost revenue were too speculative, and Mississippi did not support the claim with sufficient evidence or proof. (In the Texas case, Texas argued that it was being damaged by lost revenue in having to issue driver’s license to DACA and DAPA applicants. Let’s hope the Fifth Circuit also finds those damages to be speculative, as opposed to actual or real.

The Fifth Circuit also found that the supposed damages suffered by the ICE agents were also not sufficient to constitute a “case or controversy,” to support their lawsuit against the federal government.

While the first Fifth Circuit specifically stated that this decision did not involve the 2014 expanded DACA or DAPA, and while slightly different arguments were being made in the Texas lawsuit, this decision was very much in favor and support of the federal government, and recognized the federal government’s power to exercise prosecutorial discretion and deferred action. That is a good sign in connection with the upcoming hearing on expanded DACA and DAPA. Let’s keep our fingers crossed for another favorable ruling!