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By David G. Savage and Timothy M. Phelps, Tribune Washington Bureau (TNS)

WASHINGTON — When President Barack Obama unveiled his plan to help as many as 5 million immigrants “come out of the shadows,” the White House insisted it was not rewriting law but merely using “prosecutorial discretion” to decide who should be deported first.

That argument ran off the rails in the 5th Circuit Court of Appeals this week, when conservative judges sided with Texas and upheld an order blocking Obama’s plan from taking effect.

Despite protests from the president’s lawyers, judges portrayed Obama’s latest executive action on immigration as a major change in the law, and one not approved by Congress.

It “would extend lawful presence to millions of illegal aliens on a class-wide basis,” said Judge Jerry Smith, and “affirmatively confer” a “host of federal and state benefits,” including, he said, a Social Security pension and Medicare hospital coverage.

The decision sets the stage for another highly partisan battle played out in the Supreme Court, with Texas and 25 Republican-led states on one side, and Obama and the Democratic-led states on the other.

The president’s lawyers may well face an uphill fight in the high court, where some justices have voiced skepticism over Obama’s bold use of executive authority. Twice, the high court has upheld Obama’s health care law against conservative challenges, but in those cases, Chief Justice John G. Roberts Jr. cast a key vote to preserve a liberal law that had won approval in Congress.

In the immigration area, by contrast, Obama has no new law to defend. A bipartisan reform measure died when House Republicans refused to take up a Senate bill that had won passage on a 68-32 vote. Only then did a frustrated Obama announce his executive action to “help make our immigration system more fair and just.”

Going forward, the key question will be: Is the president enforcing the immigration laws or changing them?

In public statements and legal briefs, Obama’s aides describe their immigration initiatives as limited and temporary. No one is offered “rights” or a “path to citizenship.” They speak of “case-by-case” determinations involving individuals, not changes that affect whole categories of people. They describe their policy with the phrase “deferred action” a term used in immigration law to mean the government had decided to put off the deportation of someone who could be sent home.

In 2012, the Department of Homeland Security announced Deferred Action for Childhood Arrivals, or DACA, to offer a temporary lawful status to as many as 1.2 million people who were brought to this country illegally as children. This policy did not face a strong challenge in court, in part because these immigrants could not be accused of deliberately violating the law when they crossed the border.

But last year, when the president and Homeland Security Secretary Jeh Johnson announced the much larger Deferred Action for Parents of Americans, or DAPA, lawyers for Texas and 25 other states filed a suit to block the plan. The president’s plan also included an expansion of DACA that could affect several hundred thousand additional immigrants.

Experts in immigration law knew the administration was skating near the edge when it announced changes that would affect as many as 5 million immigrants who were living in the U.S. illegally. On the one hand, they said the law had always given the executive branch the authority to decide whom to deport and to set priorities, such as focusing on those with criminal records.

But as Judge Smith saw it, the DAPA order went far beyond that by saying the government would not seek to deport immigrants who had lived with their American children for many years in the United States. That policy “would affirmatively confer ‘lawful presence’ and associated benefits to a class of unlawfully present aliens” numbering about 4.3 million, he said. His opinion was joined by Judge Jennifer Walker Elrod. Both were Republican appointees.

Judge Carolyn D. King, a Democratic appointee, dissented and described the new policy in a quite different way. “DAPA is merely a general statement of policy,” she said. It does not guarantee anything to anyone.

Solicitor General Donald Verrilli Jr., Obama’s top courtroom lawyer, is expected to file an appeal in the Supreme Court soon and urge the justices to rule on the case by next June.

Early this year, Obama’s lawyers hoped to get the Texas case thrown out on the grounds that the state had suffered no injury, and therefore had no standing to sue. But U.S. District Judge Andrew Hanen in Brownsville said the state could be forced to pay hundreds of thousands of dollars to help pay the cost of driver’s licenses for nearly a half-million immigrants in Texas, and that was a sufficient injury. He then issued a national order blocking Obama’s plan from going into effect, an aggressive use of his judicial power.

The 5th Circuit panel affirmed his decision this week, and it did so by relying on a liberal precedent from an environmental case.

A decade ago, environmentalists were upset that the Bush administration was not taking action against global warming, and a coalition of “blue states” led by Massachusetts and California sued, alleging a failure to fully enforce the Clean Air Act. The key question was whether these states could claim they had an injury that gave them standing.

In Massachusetts v. EPA, the court by a 5-4 vote ruled for the blue states and said they had standing because rising seas could take away parts of their beach fronts. Chief Justice Roberts sharply dissented.

In this week’s opinion, Judge Smith repeatedly cited the Massachusetts case as confirming that Texas had standing to challenge the Obama administration for not enforcing the laws against illegal immigration.

Immigration law scholars who have supported the administration believe Obama’s executive actions will be upheld in the end. The 5th Circuit ruling “flies in the face of several Supreme Court precedents granting the executive branch broad, almost unlimited, power on immigration issues,” said Cornell Law professor Stephen Yale-Loehr.

Verrilli’s first task, however, will be to win a quick hearing. If the justices vote to take up the case by January, it will be decided by next summer, which could give Obama’s team time to put the new policy into effect. But a delay could push the case to the fall, which could leave the 5th Circuit’s order in place until the president leaves office.

Photo: President Obama waves from Air Force One as he leaves Miami after a town hall meeting on immigration at Florida International University in Hialeah, Fla., on Wednesday, Feb. 25, 2015. (Pool photo by Pedro Portal/Miami Herald/TNS)

Former Navy Secretary Sean O'Keefe

Photo Credit: NASA/Joel Kowsky

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