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Footnote May Show Why 5th Cir. Upheld Exec. Action Stay. By Roger Algase

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Sometimes, in order to find the real reason for a court's decision on any issue, one has to look at the footnotes to the opinion, rather than its main body. A good argument can be made that the same is true of the 5th Circuit Court of Appeals' March 26 decision upholding a preliminary injunction by Federal District Judge Andrew Hanen against implementation of President Obama's November, 2014 executive action establishing DAPA and expanding the scope of DACA.

In this decision, consisting of a 41-page majority opinion by two Republican-appointed judges and a 26-page dissent by a Democratic-appointed one, the appeals court gave at least a temporary victory to 26 Republican-controlled states in their lawsuit against a Democratic president in what is arguably the most highly polarizing and politicized issue in America today - whether to carry out mass deportation of the 11 million predominately Hispanic immigrants who are now in this country without legal permission.

If one reads the majority and minority opinions, it would seem as if the momentous issue of whether an estimated 4 million people who meet the eligibility criteria for discretionary relief under the president's latest executive action will in fact be protected from deportation turns on relatively trivial issues.

Judge Jerry E. Smith's majority opinion contains a lengthy discussion about the question of whether the plaintiff states have standing to sue. According to this discussion, standing to sue turns, in large part, on the issue of whether Texas might be "harmed" by having to raise its fees for drivers' licenses to meet estimated demand from potential DAPA/DACA Extension beneficiaries.

Four million people to be deported because one state might have to charge more for drivers' licenses? Any lawyer is used to seeing important substantive questions hinging on less consequential technical issues, but is there not an Alice in Wonderland quality about making the lives of millions of immigrants and their families depend on the amount of a state's driver's licence fee?

Not to be outdone, the dissenting judge, Stephen A. Higginson, went into a detailed analysis of what he sees as a distinction between "lawful presence" and "lawful status" under the immigration laws. While agreeing with the majority that granting lawful status through executive action without Congressional approval might be beyond the scope of the president's authority, he argues that granting lawful presence, which he sees as conferring fewer benefits than status, is permissible without the consent of Congress.

Again, one has to ask, with all due respect to the learned judges on both sides, whether an issue of such enormous social, economic and political consequence should turn to such a significant extent on trivia, word games and legal hairsplitting.

However, in the first sentence of the final footnote of the entire discussion, Number 12 to Judge Higginson's dissent, appearing at the very end, on the last page of the 68-page transcript, he gives us a strong hint as to what this lawsuit is really about. One might even say that he is letting the cat out of the bag. The footnote begins as follows:

"Over twenty years ago, Judith Shklar observed in her book: American Citizenship, aptly subtitled The Quest for Inclusion, that the United States has an 'extremely complicated' history of 'exclusions and inclusions, in which xenophobia, racism, religious bigotry and fear of alien conspiracies have played their part'..." (Bold added.)

Now, at the very end of 68 pages of discussion, we are finally shown some insight into what the motivation for this lawsuit, Texas v. U.S., might actually be.

My conclusion about the best way to understand this and many other judicial opinions: Follow the footnotes.
__________________________
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping skilled and professional immigrants obtain work visas and green cards for more than 30 years.

His practice is concentrated in H-1B specialty worker, O-1 extraordinary ability, L-1 intracompany transfer and J-1 training visas, and green cards through Labor Certification and opposite sex or same sex marriage.

Roger's email address is algaselex@gmail.com


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Updated 05-28-2015 at 07:50 AM by ImmigrationLawBlogs

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