Wed Jun 3, 2015 by Anil Kalhan
Executive Action on Immigration and the Judicial Artifice of “Lawful Presence” (Dorf on Law)
(Posted at Dorf on Law)
As Professor Dorf noted on Friday, last week a divided panel of the U.S. Court of Appeals for the Fifth Circuit denied the federal government’s motion for a stay pending appeal of U.S. District Judge Andrew Hanen’s preliminary injunction blocking the Obama administration’s immigration initiatives. At least rhetorically, the language of the opinion, written by U.S. Circuit Judge Jerry E. Smith and joined by U.S. Circuit Judge Jennifer Walker Elrod, is more measured than Judge Hanen’s cloddish, 123-page screed—although concededly, that is a rather low hurdle to clear. Aside from a long footnote endorsing a patronizing argument for why the increasingly discredited term “illegal alien” should not be understood as “an opprobrious epithet,” Judge Smith’s opinion contains little of the gratuitous anti-immigration rhetoric found in Judge Hanen’s opinion, which I have analyzed both here at Dorf on Law and in a forthcoming article in the UCLA Law Review Discourse.
Substantively, however, the opinion suffers from precisely the same basic flaws. In some detail, immigration law expert David Leopold has already highlighted the manner in which the dissenting opinion filed by U.S. Circuit Judge Stephen A. Higginson persuasively demonstrates some of those flaws, and his essay is a must read for anyone interested in this litigation. In this post, I examine a different set of flaws in Judge Smith’s opinion that Judge Higginson does not discuss in his dissent. Like Judge Hanen, Judges Smith and Elrod rest their conclusion upon a wholly incorrect set of characterizations of both the legal basis for the Obama administration’s immigration initiatives and the manner in which they actually operate, even as they offer those mischaracterizations in more restrained tones than Judge Hanen. In order to characterize those initiatives as involving something other than the exercise of prosecutorial discretion as permitted by existing law, Judge Smith’s opinion fashions a severely mistaken conception of “lawful presence” almost out of whole cloth. While more refined and polished than Judge Hanen’s opinion, Judge Smith’s opinion takes many of the same liberties when it comes to accurately characterizing and analyzing the factual and legal realities of the Obama administration’s initiatives.