President Obama’s lawyer had a rough day last Friday before a three-judge panel of the 5th Circuit Court of Appeals attempting to fend off the immigration lawsuit filed by 26 states. According to the latest polls and oral arguments on President Obama’s executive amnesty, the policy is losing in the courts of public and legal opinion.
Let’s begin with the court of public opinion.
As PPD has previously examined, particularly in the case of immigration, the results get worse when the question is asked more plainly. We have examined and explained the data on this topic in great detail in the past, but most voters still oppose President Obama’s executive order to exempt millions of illegal immigrants from deportation. In fact, according to Rasmussen tracking, more than ever say he doesn’t have the legal authority to take such action, which is precisely the question presently making its way through federal courts.
But voters remain closely divided over whether their state should be part of the legal challenge now tying up Obama’s plan in court. While 59 percent say Obama does not have that legal power to issue the order, which is up from 52 percent in February and a new high to date, 43 percent of voters want their state to sue the administration. That’s still more than the 39 percent who say they are opposed, but a significant 18 percent remain undecided.
However, there is evidence to suggest the vast majority of undecideds will not be swayed to support the plan regardless of how the courts rule.
Overall, 56 percent of likely voters now oppose the president’s plan, up from 51 percent measured by Rasmussen in early February. Meanwhile, only 35 percent favor the plan, which is little changed from two months ago, and only 25 percent believe the president has the legal authority to grant executive amnesty without the approval of Congress. A nearly identical number of voters (26 percent) say Obama should take action if Congress doesn’t lay down in front of him.
Most voters continue to believe the federal government is encouraging illegal immigration and more voters than ever feel the United States is not aggressive enough in deporting those who are here illegally. Further, most also still say that securing the border is more important than legalizing illegal immigrant workers already here.
Sixty-one percent of voters favor the Madisonian Constitutional philosophy, thus they say the government should only do what the president and Congress agree on when it comes to immigration, which is up four points from early December. Though voters under 40 are disproportionately more likely than older voters to say the president has the legal authority, voters of all ages still agree the government should only do what Congress and the president decide together on immigration.
The national survey of 1,000 Likely Voters was conducted on April 19-20, 2015 by Rasmussen Reports. The margin of sampling error is +/- 3 percentage points with a 95% level of confidence.
Let’s move on to the court of legal opinion.
U.S. District Judge Andrew Hanen in February granted the preliminary injunction requested by the states and temporarily blocked the president’s order.
“The genie would be impossible to put back into the bottle,” Judge Hanen wrote, flat-out stating that he agreed with the plaintiffs’ argument that the burden from legalizing millions of people is sufficient for standing, He said the order — if allowed to take effect — would be a “virtually irreversible” action.
The administration further dug their hole deeper when the judge caught them in a lie.
However, the substance of district court Judge Andrew Hanen’s Feb. 16 injunction order was not the question before the 5th Circuit, yet; only whether the government’s request for a stay (or lifting the injunction while the appeal is pending) would be granted.
Benjamin Mizer, the acting assistant attorney general of the Civil Division at the Justice Department, made a series of arguments that appeared not to sit well with the justices.
Mizer argued the government had “good reasons to grant” work permits because it would allow an otherwise illegal immigrant “to work on the books rather than off the books.” Because it is a “third-party crime” for an employer to hire an illegal, providing work permits “is actually reducing crime by reducing the third-party crime.”
“In other words, rather than enforcing federal immigration law that prohibits employers from employing any noncitizen who doesn’t have a work permit, it is better for the government (without authority) to issue work permits to illegal aliens so employers won’t break the law the administration doesn’t want to enforce,” notes Hans von Spakovsky, a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies who attended the hearing. “The government has to break the law so employers won’t have to.”
The justices were skeptical.
Judge Smith said that — on the issue of standing, which the government argued the states do not have — the case of Massachusetts v. EPA (2007) seems quite relevant. The U.S. Supreme Court ruled in that case that the states had standing on the issue of the EPA’s then-nonregulation of so-called greenhouse gases. Judge Smith appeared to believe the case ironically gave plenty of precedent to grant the states standing.
Texas Solicitor General Scott Keller also pegged Mizer down by arguing that the injunction simply keeps the existing status quo on immigration law. Judge Jennifer Elrod quickly noted that the court was “big about [preserving] the status quo,” particularly regarding the Supreme Court “in the middle of cases.” When she asked Mizer to answer why it could not be considered a “logistical mess” for the 5th Circuit to lift the stay, considering the government would move to issue work permits and grant tax benefits even though the states could win the lawsuit, he was stumped.
Judge Elrod said illegals who are legalized by the executive amnesty “could end up with a big check and you’d need to knock on their door and ask for it back.”
It struck at the heart of Judge Hanen’s ruling, which stated the “genie would be impossible to put back into the bottle,” and Mizer only answered by stating they had “additional logistical steps” to take, and that illegal immigrants “probably” would not be able to collect tax credits before the case was decided because there are “a lot of hoops that an individual had to jump through.”
I read polls better than judges, but it would be a safe bet to assume that the 5th Circuit was just as convinced as the American people.