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A Ticking Clock Threatens Obama's Immigration Plan

A federal appeals court in New Orleans heard oral arguments in a case that could determine the viability of President Obama's plan to temporarily shield more than 4 million undocumented immigrants from deportation and issue them work permits.

At stake is whether the president will get to implement his plan before his term expires.

In a rare hearing before a three-judge panel of the 5th U.S. Circuit Court of Appeals, government lawyers asked the judges to issue an emergency stay of the February ruling by U.S. District Judge Andrew Hanen. Such requests are usually confined to written briefs. Each side was allotted an hour to argue — twice as much as is generally heard in a Supreme Court case.

Hanen, based in Texas, had ruled the president had overstepped his authority and violated the law governing administrative procedures in announcing his executive action on immigration back in November. Judge Hanen also said that the state of Texas would incur costs associated with issuing driver's licenses to immigrants who gained legal status.

Texas is leading a 26-state coalition suing to challenge the president's executive action.

Arguing for the Justice Department, Benjamin Mizer said Texas had no standing because immigration policy is set by the federal government.

"If Texas is right, it could challenge an individual's right to seek asylum," Mizer said. "The states do not have standing in the downstream effects of a federal immigration policy."

But Texas Solicitor General Scott Keller argued that his state does have a stake in immigration policy. In astatement issued after the more than two-hour hearing, Texas Attorney General Ken Paxton said:

"President Obama's executive amnesty program would grant legal status to individuals who are unlawfully in this country, making them eligible for benefits under federal and state programs. These benefits include work permits, tax credits, Social Security, Medicare, driver's licenses, unemployment insurance and the right to international travel."

Attorneys for both sides were frequently questioned by two of three panelists. Judge Jennifer Elrod, a George W. Bush appointee, appeared skeptical of the administration's defense of the President's executive action. Similarly, Obama appointee Judge Stephen Higginson appeared more open to the government's arguments.

A third judge, Jerry Smith, a Reagan appointee, was mostly silent throughout the hearing, according to Marielena Hincapie, Executive Director of the National Immigration Law Center, who attended the hearing. Her group supports Obama's executive action.

The sounds of several hundred immigration activists protesting outside could be heard from inside the courtroom.

Going into this hearing, many court watchers had noted that the administration could face a tough time since the 5th U.S. Circuit Court of Appeals is considered the most conservative appellate court in the country.

The judges did not rule. A decision is not generally expected for another few weeks.

The hearing is only one act in the legal drama over the president's immigration plan. If the panel rules against the president, his administration could request an en banc hearing or take an appeal to the Supreme Court.

Hanen is still scheduled to hold a trial on the constitutionality of Obama's executive action. The administration would certainly appeal an adverse ruling from a judge who has already thrown one roadblock in front of the president's plan.

Ultimately, time may not be on President Obama's side, says Carl Tobias, a law professor at the University of Richmond.

"All of this legal jousting will probably consume many months and may well run out the clock, as the Obama Administration draws to a close," said Tobias.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Richard Gonzales is NPR's National Desk Correspondent based in San Francisco. Along with covering the daily news of region, Gonzales' reporting has included medical marijuana, gay marriage, drive-by shootings, Jerry Brown, Willie Brown, the U.S. Ninth Circuit, the California State Supreme Court and any other legal, political, or social development occurring in Northern California relevant to the rest of the country.

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