The President believes he can issue an executive order granting millions of illegal immigrants legal status, i.e., an assurance they won’t be deported for the rest of his term in office. His order was issued several months ago in a pique of frustration at the refusal of the House to approve the 2013 immigration reform law, which would have allowed every illegal alien in the country to stay here legally and possibly obtain citizenship. The President dared Texas and other conservative states to sue to block his executive order, and they did just that. The primary plaintiff was Texas which argued the order would cost the state money in two ways: subsidized drivers’ licenses, which it already provides to legal immigrants and unemployment benefits, also available to legal immigrants.

A federal district judge in Brownsville, Texas agreed with the state and ordered the executive order enjoined (blocked) until a trial could determine the merits, that is whether the state’s fear of an increased fiscal burden was meritorious. The Judge thought Texas would probably win the case and so staying the order was fair until it could be decided.

The Obama Justice Department gave the decision the back of its hand and predicted the Fifth Circuit Court of Appeals in New Orleans, which hears cases from Texas, would reverse the injunction and let the executive order go ahead. But this week the Fifth Circuit affirmed the injunction. (One of the three judges on the panel, appointed by the President, dissented.) This means the executive order will not go into effect until the court in Brownsville has held a trial and determined whether it was legally implemented (the Judge thinks it was not). This may take months. If the government loses, which is likely, then the program will not go into effect at all before President Obama leaves office. If the government manages to win and persuade the district judge that his initial take on the executive order was wrong, then it could be implemented months from now.

The key point about the injunction is that Texas had “standing” to seek it and challenge the executive order. As I said its damages were not enormous, just the cost of subsidizing drivers licenses and paying unemployment claims. But that was a real enough economic harm to allow it to sue. The Justice Department argued the damages were speculative because Texas could have ended the program that subsidized licenses. It also said the unemployment benefits may never materialize.

It’s been hard to anyone to show standing to challenge immigration actions which let illegals into the country or remain here. One immigration agent recently lost his case because he could not show his job was threatened by not carrying out his statutory obligation to arrest every illegal immigrant he encountered, i.e., to use discretion. The dissenting Judge cited that decision by the Fifth Circuit in support of his view that Texas lacked standing to challenge the order.

So the Fifth Circuit’s decision on standing to challenge the law is important even if the state ends up losing, which is unlikely.