Audio of Oral Argument in Texas v. USA, CA5, July 10, 2015

Allissa Wickham, Law360, July 10, 2015 - "Attorneys for the U.S. Department of Justice and 26 states squared off Friday at the Fifth Circuit over whether a block on President Barack Obama's executive actions on immigration should be reversed, with the judges grilling both sides on complicated issues of standing and lawful presence.  [Link to audio here.]

During oral arguments in New Orleans, a three-judge panel weighed whether to grant the U.S. Department of Justice’s request to undo a preliminary injunction issued in Februaryagainst Obama’s executive actions, which could temporarily shield an estimated 4.4 million people from deportation.

Under the programs, certain immigrants could defer removal and apply for work permits for three-year periods. The policies would expand a program for immigrants who came to the U.S. as kids, and create a similar program for immigrant parents, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

On Friday morning, Benjamin Mizer, who leads the DOJ’s civil division, tore into Texas’ theory that the costs of issuing driver's licenses to DAPA recipients should give it standing to challenge the president’s policies, saying Texas could simply choose to eliminate the subsidies it provides for licenses given to deferred action recipients.

In granting the injunction, U.S. District Judge Andrew Hanen found that if DAPA-eligible immigrants in Texas apply for licenses, the state will spend about $174 for each applicant, costing it millions. The lower court judge also held that DAPA is a substantive rule that should have been subjected to the rulemaking process.

Mizer faced his toughest questioning from Judge Jennifer Walker Elrod, a George W. Bush appointee, who asked him if there was anyone who actually has standing to challenge whether the Homeland Security secretary exceeded his power in issuing the deferred action memo.

“With respect to standing, I’m not sure that there’s anyone,” Mizer conceded.

But while Mizer fielded pointed questions from Judge Elrod, Texas Solicitor General Scott Keller, who argued for the plaintiff states, faced skepticism from Judge Carolyn Dineen King, was appointed by Jimmy Carter.

One of Keller’s main arguments was that DAPA is reviewable under the Administrative Procedure Act because it grants lawful presence and the ability to apply for work permits. However, Judge King countered that immigrants don’t have true lawful status under DAPA, and echoed the government's point that deferred action can be revoked.

“It doesn’t given anybody lawful status,” Judge King said. “You can turn them out tomorrow.”

Judge Jerry E. Smith, who largely played his cards close to his chest, also noted that Fifth Circuit sees deferred action cases every day, with the federal government sometimes indicating that there’s no date for deportation.

“But that doesn’t confer any lawful presence or any benefits, other than the fact that you’re not going to be shipped out,” Judge Smith said.

Keller contended, however, that the DAPA policy is actually a substantive rule, because it is the basis under which the over 4 million people would be able to secure lawful presence. Mizer, in his closing rebuttal, insisted that the term lawful presence doesn’t have the “magical attachment” that Texas has given it, as the term simply means that an individual can remain in the U.S. for a time.

Mizer added that an immigrant’s work eligibility isn’t directly tied to the executive action guidance, but rather to pre-existing regulations that were issued in 1981. The work permit issued also appeared to be a sticking point for Judge King, who argued that allowing deferred action recipients to work has been in existence “for a long time.”

At several times throughout the hearing, voices and music from protesters gathered outside the Fifth Circuit penetrated the courtroom’s walls, with a loud brass band playing over the arguments.

Rep. Luis Gutierrez, D-Ill., attended the arguments, and rallied the crowd in front of the courthouse after they were done, saying that the 26 states suing over the executive actions had turned the court into a “partisan battleground.”

Based on the arguments alone, it’s unclear whether the panel will chose to reverse the injunction. Both Judge Smith and Judge Elrod, however, voted not to lift the stay on the injunction in May. This may indicate that they're less inclined to fully reverse the injunction,legal experts told Law360.

The hearing on whether to reverse the injunction followed oral arguments in a separate but related appeal, in which three DAPA-eligible mothers are seeking to intervene in the executive action case. During that hearing, the judges seemed relatively open to their arguments, with Judge Smith pointing out that the Fifth Circuit has a record for being fairly generous with interventions.

The 26 states are represented by Scott A. Keller, J. Campbell Barker, April L. Farris, Matthew Hamilton Frederick and Alex Potapov of the Office of the Attorney General of Texas.

The U.S. and other defendants are represented by Benjamin C. Mizer, Scott R. McIntosh, Beth S. Brinkmann, Jeffrey A. Clair, Kyle R. Freeny, Kathleen R. Hartnett and William E. Havemann of the DOJ.

The case is State of Texas, et al. v. U.S., et al., case number 15-40238, in the U.S. Court of Appeals for the Fifth Circuit."