In what Texas governor Greg Abbott called "a victory for the Constitution," a federal appeals court in New Orleans refused to lift on injunction preventing the implementation of President Obama's executive orders on immigration.  The injunction was ordered by a federal judge in Texas in February.

The three appeals court judges – two Republicans and one Obama Democrat – voted 2-1 against the administration.  The majority opinion had some bad news for the president.

The Hill:

U.S. District Judge Andrew Hanen in February slapped a preliminary injunction on the programs to stop them from taking effect while he considered the lawsuit.

The Department of Justice fought back in court, asking the 5th Circuit for an emergency stay lifting the order in March. The administration argued the states had no standing to bring the case because the federal government has the sole power to enforce immigration law.

Judges Jennifer Elrod and Jerry Smith of the 5th Circuit said the stay should remain in effect because the states had made a compelling case that they would suffer harm if the programs went into effect. 

“The public interest favors maintenance of the injunction,” the judges wrote. 

They also said granting stays of deportation to broad groups of immigrants goes beyond the president’s “prosecutorial discretion.”

“It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens,” the judges wrote. “Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.”

Elrod and Smith are both Republican appointees. Judge Stephen Higginson, an Obama appointee, dissented.

Higginson sided with the administration, arguing there is strong legal precedent showing immigration enforcement “must be decided, presently is being decided, and always has been decided, by the federal political branches.”

The White House slammed the majority opinion, accusing Elrod and Smith of choosing “to misinterpret the facts and the law in denying the government’s request for a stay.”

“The president’s actions ... are squarely within the bounds of his authority, and they are the right thing to do for the country,” said spokeswoman Brandi Hoffine.

The Justice Department must now decide whether to appeal to the entire 5^th Circuit Court or take the case to the U.S. Supreme Court.  Neither venue is particularly attractive for the administration, and some observers believe that a defeat on the immigration orders will tarnish Obama's already meager legacy:

If the administration can’t get the Supreme Court to act promptly to lift the injunction or chooses not to try, the White House could find Obama’s long-promised immigration actions on hold until the Supreme Court rules definitively on the legal questions at stake — a ruling that likely wouldn’t come until next June.

By then, the presidential campaign will be in full swing and Obama’s final term will be winding down, prompting some illegal immigrants to consider holding off applying until the dust clears.

“I think the big question there comes back to, depending on how close we are to the election, will people find confidence enough to come forward and apply,” said Marielena Hincapié of the National Immigration Law Center. “The longer this stuff — the delay — basically, the harder the impact will be on our communities.”

One former top immigration official says that regardless of the eventual outcome of the litigation, the delay is likely to undermine the willingness of immigrants to take the much-vaunted step out of the shadows.

“I think the longer the program languishes the more uncertainty is going to build. That’s going to create a reluctance for people to come forward and participate,” said Paul Virtue, a former immigration service chief counsel now with law firm Mayer Brown.

Such a showdown could also vault the immigration issue into higher prominence in next year’s presidential election. So far, Democratic presidential candidate Hillary Clinton has said she would try to expand Obama’s executive actions, while most Republican hopefuls have vowed to rescind them.

It's good that the 5^th circuit recognized – finally – that the president had exceeded his "prosecutorial discretion" in expanding the DREAM act and other actions.  Arguing from that point of view will make it very difficult for any court to lift the injunction.  Any court that overturns this decision will have to do a better job than the Obama judge on the 5^th Circuit did in simply declaring that immigration policy and enforcement are made at the federal level.  There are other issues involved, as the states rightly point out – issues like soaring costs for medical care, schooling, and other functions that are the province of states.  If the federal government injures a state by its actions, what recourse do the states have except to seek to remove the cause of that injury? 

This is what has administration supporters concerned: that the Supreme Court will accept the constitutional argument and agreee with the appeals court that adding 5-6 million people to already overburdened state services is a step too far.