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Clash Over Obama Immigration Action Goes Before Appeals Judges

Martha Mateo holds her two-year old daughter Jennifer in her arms as she leads a group of peaceful protestors in chants outside of the federal courthouse Thursday, March, 19, 2015. (AP Photo/The Brownsville Herald, Yvette Vela)Yvette Vela / AP
/ Source: NBC News

The Obama administration will urge a federal appeals court Friday to lift a court order preventing enforcement of the president's new rules for allowing millions of undocumented migrants to remain in the country and work.

The new policy, announced last November, could shield up to 5 million people from deportation, but it was blocked in February by a federal judge.

In response to a lawsuit filed by Texas and 25 other states, the judge said the administration failed to seek public comment before issuing the new immigration rules. While an appeal of that decision is pending, the government is seeking to have the February injunction lifted.

Barring the new policy, the Justice Department argues, disrupts efforts by the Department of Homeland Security "to most effectively marshal the agency's limited resources to protect national security, public safety, and border security."

The White House says the policy is the result of setting new enforcement priorities, focusing on those who threaten national security or have committed serious crimes.

The action by the Texas judge was so sweeping, the government says, that it even blocks enforcement of the rules in states that support the new policy: "The nationwide breadth of the injunction is indefensible."

But the states respond that the injunction has no effect on federal enforcement priorities. The states challenge provisions in the rules that would allow millions of people to get work permits and other benefits.

"The injunction neither prohibits nor requires any removal proceedings, and it does not prevent the executive from identifying aliens based on whether they are a removal priority," the states say in their formal response.

The problem, they say, is that the rules would confer a lawful legal status on those covered, "which carries significant legal consequences, including eligibility for Social Security, Medicare, the Earned Income Tax Credit, unemployment insurance, and other benefits."

Those new polices, they say, would result in higher costs for them in accommodating people who remain in the US under the proposed rules.

A three-judge panel of the Fifth Circuit Court of Appeals will hear oral argument on the injunction issue Friday in New Orleans. Two of the judges were appointed by Republican presidents -- Ronald Reagan and George W. Bush. The third was appointed by President Obama.

A challenge to the administration's new rules is likely to wind up in the U.S. Supreme Court. Attorney General Eric Holder in February described the Texas ruling as "an interim step."

Holder added, "I've always expected it will ultimately be decided by a higher court."