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Appeals court panel hears arguments on Obama plan to protect millions from deportation

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NEW ORLEANS — Noise from hundreds of chanting immigration activists outside a federal appeals court building competed at times Friday with lawyers arguing inside over President Barack Obama's proposal to shield an estimated 5 million people from deportation who are in the U.S. illegally.

"The three judges felt the vibrancy and power of our movement," said Marielena Hincapie, of the National Immigration Law Center, speaking to the crowd that rallied while a panel of the 5th U.S. Circuit Court of Appeals heard the case.

Demonstrators gathered on the steps of the federal courthouse with permission from authorities, their chanting mixed with speeches in English and Spanish and music from a brass band. Activists criticized Republican resistance to the Obama program and called for policies that let immigrants stay and work in the country.

The crowd spilled into a blocked-off street and a nearby park. Organizers said there would be acts of "civil disobedience." Police were seen escorting some away from an intersection near the court building. Police spokesman Frank Robertson said 14 people were issued summonses for obstructing public passages.

Inside the courthouse, the judges heard the latest versions of now-familiar arguments, with an attorney for the state of Texas arguing that Obama's program amounted to executive overreach, and an Obama administration attorney saying the executive branch was within its rights in deciding to defer deportation of selected groups of immigrants.

Obama announced the plan in November. Republicans in Congress were highly critical and a federal judge in Texas, siding with Texas and 25 other states, issued an injunction, which the Obama administration appealed.

It was unclear when the appeals court would rule. A ruling against the administration would further dim prospects of implementation of the executive action before Obama leaves office in 2016. Appeals would take months and, depending on how the case unfolds, it could go back to the Texas federal court for more proceedings.

Obama's executive orders were intended to expand a program called Deferred Action for Childhood Arrivals, which protects young immigrants from deportation if they were brought to the U.S. illegally as children. The other major part, Deferred Action for Parents of Americans, would extend deportation protections to parents of U.S. citizens and permanent residents who have been in the country for some years.

"All that deferred action confers on an alien is the right to remain here," said Benjamin Mizer, an assistant attorney general arguing for the administration. "It is temporary and revocable."

Scott Keller, representing the Texas Solicitor General's Office, argued that the administration was doing more than simply deferring action. He said the plan would effectively grant a new legal status — legal presence — to people in the country illegally, putting them in line to get permission to work and benefit from Social Security.

Judge Carolyn Dineen King seemed skeptical of that argument at times, noting that deferred action wouldn't change the fact that someone entered the country illegally and would not protect them from deportation under any circumstance. "Based on the unlawful thing that they did to begin with, you can turn them out tomorrow," she said.

Arguments also settled on whether Texas and the states even have the power to challenge the federal executive branch's authority to regulate immigration. Arguments on that issue largely have centered on the costs Texas would incur by having to issue driver licenses to DAPA beneficiaries — an injury, the state argued — that gave them the right to sue.

Two of the judges on Friday's panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on a panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal outcome. In that opinion, they disagreed with government contentions that Texas had no standing. They also ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act, which the Justice Department disputes.

Obama's own statements came into play inside and outside the courtroom. Elrod noted at one point that Obama had once said he would "have to change the law" to implement reforms. Texas' attorney general's office, in a post-hearing news release, noted a statement Obama made last year that he had taken "action to change the law."

It was unclear Friday whether either Smith or Elrod was swayed by any of Friday's arguments.

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