The Obama administration will urge a federal appeals court Friday to let the government enforce proposed new immigration rules that could shield up to five million people from deportation.
The new policy, announced last November, has yet to go into effect. It would allow people here illegally to remain if they have children who are U.S. citizens or lawful permanent residents.
The new rules would also expand a program, begun three years ago, that allows young people to remain if they were brought to the US under age 16, provided they meet educational or military service requirements.
In response to a lawsuit filed by Texas and 25 other states, a Houston federal judge in February blocked enforcement of the new rules, declaring that the administration illegally failed to seek public comment first. Then in May, a panel of three federal judges on the Fifth Circuit Court of Appeals in New Orleans, voting 2-1, rejected a Justice Department request to let the government enforce the rules while the case is on appeal -- or at least to enforce the policy in states not involved in the lawsuit.
Prospects for an administration victory at this stage do not look bright. The same two judges who refused to lift the legal hold in May, both appointed by Republican presidents, are on the panel that will hear Friday's appeal. The third judge who will hear the case was appointed by President Carter.
The 26 states filing the lawsuit challenge provisions that would allow people covered by new policy to get work permits and other benefits. Those new polices, they say, would result in higher costs of accommodating people who remain in the US.
Texas, for example, argues that it would be saddled with the additional expense of issuing driver's licenses to an estimated half a million parents who would be eligible to remain in the US. "The evidence establishes that Texas will incur millions of dollars in costs," the state argues in its legal briefs.
If that's so, the federal government responds, it's a problem of the state's own making, because Texas chose to subsidize the cost of licenses instead of requiring drivers to bear the cost.
At the heart of the case is the question of whether the administration's proposal is simply a change in policy or something more.
The Justice Department argues that the rules amount to an adjustment of enforcement priorities, concentrating on terrorists and criminals and deferring removal for others. The changes, government lawyers say in their legal briefs, are intended "to manage the government's limited immigration enforcement resources."
For others who are here illegally, and are at the bottom of the priority list for removal, the government would defer for three years any effort to seek deportation. It is that status that would allow them to remain in the US and seek work.
The states say that President Obama himself has described the proposed rules as "an action to change the law." Such a big adjustment, they say, requires public notice and comment.
"It explicitly grants aliens lawful presence in the country," which the states say "is not some empty label" and creates eligibility for Social Security, Medicare, and other benefits.
But the Obama administration says the option to seek work permits is the result of a 1981 regulation that makes all immigrants who are here illegally eligible to apply for work authorization if they are "accorded deferred action." That provision, the government says, was adopted only after time for public comment.
No matter how the judges rule, the outcome is sure to be appealed.