"The Executive wants to impose one of the largest shifts in immigration policy in our Nation’s history. The stay motion can be denied on that basis alone: such a questionable policy should not be implemented unilaterally before judicial review," lawyers for the state officials wrote Monday night in a brief filed with the New Orelans-based 5th Circuit U.S. Court of Appeals (and posted here).

The brief for the state officials — all of whom are Republicans — argues that there is no emergency requiring that U.S. District Judge Andrew Hanen's ruling blocking the Obama immigration moves be put on hold while the federal government's appeal of that decision goes forward.

Hanen issued a ruling last month questioning the legal basis for Obama's executive actions on immigration, but blocking them only on rather technical grounds that they had not been formally enacted as regulations by putting them through an official notice-and-comment period.

 As expected, the 26 states' brief argues that the status quo that the courts should give weight to preserving is that which existed before the administration announced the latest round of immigration actions in November. Those moves included an expansion of an existing program for illegal immigrants who arrived in the U.S. as children and a new program for illegal-immigrant parents of U.S. citizens or legal residents.

"Such a drastic step [as a stay] would require an extraordinary showing of emergency and legal merit, and Defendants have failed to show anything close. In particular, they have identified no looming injury that could justify an 'emergency' stay," the states' lawyers wrote. "The preliminary injunction simply confines the Executive to what it previously admitted were the limits of its powers, temporarily preventing the implementation of an unprecedented and practically irreversible benefits program in order to allow the Judicial Branch to review its validity."

In a motion earlier this month seeking the stay, Justice Department lawyers called Hanen's ruling "unprecedented and wrong."

Some legal observers have said the Obama Administration's effort to temporarily block Hanen's decision pending an appeal faces long odds, especially in front of the conservative 5th Circuit.

Not all states are seeking to block Obama's immigration moves. A total of 14 states filed an amicus brief with the 5th Circuit earlier this month urging it to lift Hanen's decision nationwide, or at least limit the injunction to the states backing the lawsuit.

Source: Josh Gerstein