NEW ORLEANS (Reuters) - Two conservative U.S. appeals court judges expressed skepticism on Friday over arguments to lift an injunction blocking President Barack Obama’s efforts to overhaul immigration law without congressional action.
Administration lawyers were in court to ask a 5th U.S. Circuit Court of Appeals panel to lift the injunction, issued in February by a federal judge in Texas, halting the president’s executive action intended to shield 4.7 million undocumented immigrants from deportation.
The programs angered many Republicans who accused the president of executive overreach and granting amnesty to lawbreakers, but drew praise from immigrant rights advocates, more than 100 of whom rallied outside the courthouse in New Orleans during and after the oral arguments.
Judge Jennifer Elrod was the most openly skeptical of the administration’s argument that the executive action conferred no benefits on the undocumented immigrants it covered, but merely granted them provisional relief from prosecution.
What if the administration put out a similar rule that applied to all undocumented immigrants, Elrod asked acting Assistant Attorney General Benjamin Mizer.
“Would that be unlawful?” she asked.
Also expressing misgivings was Judge Jerry Smith, who said a U.S. Supreme Court case in which several states were found to have standing in suing federal environmental regulators over lacking carbon emissions rules would weigh heavily in his judgment of whether Texas had standing in the present case.
Both judges were appointed by Republican presidents - Elrod by George W. Bush, and Smith by Ronald Reagan.
More open to the administration’s position was Judge Stephen Higginson, an Obama appointee, who questioned Texas Solicitor General Scott Keller on whether his state was seeking an outcome most appropriately achieved through legislation.
The 5th Circuit is due to hear a full appeal later this year to permanently undo the lower court’s decision in a case that could ultimately be decided by the U.S. Supreme Court.
Reporting by Jonathan Kaminsky in New Orleans and Julia Edwards in Washington; Editing by Michael Perry and Mohammad Zargham