A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, rejected the administration’s plan to shut down the program.
“The government says it has unreviewable and unilateral discretion to create and to eliminate entire components of the federal bureaucracy that affect countless people, tax dollars and sovereign states,” Judge Andrew S. Oldham wrote for the panel. “The government also says it has unreviewable and unilateral discretion to ignore statutory limits imposed by Congress.”
“And the government says it can do all of this by typing up a new ‘memo’ and posting it on the internet,” he added. “If the government were correct, it would supplant the rule of law with the rule of say-so. We hold the government is wrong.”
Elizabeth B. Prelogar, the solicitor general, told the justices that the appeals court’s decision amounted to unwarranted interference with the president’s power over foreign affairs.
“The injunction is compelling the executive branch to maintain a controversial policy that” officials have “determined is contrary to the interests of the United States; to divert resources from other critical priorities; and to engage in ongoing coordination with Mexico,” she wrote. “That continuing intrusion on the executive’s constitutional and statutory authority to manage the border and conduct the nation’s foreign policy warrants immediate review.”
Lawyers for Texas and Missouri told the justices that the program was an effective tool to protect the nation’s borders and that the administration had not followed lawful procedures in its attempt to rescind it.