The U.S. Court of Appeals for the Fifth Circuit, in New Orleans, heard arguments on July 10 as to whether a preliminary injunction on the implementation of President Barack Obama’s executive actions to defer deportation and grant work authorization to certain undocumented individuals presently in the U.S. should be overturned. The programs were enjoined by U.S. District Judge Andrew Hanen on February 16, 2015, and the injunction was upheld by the Fifth Circuit Court of Appeals on May 26, 2015.

During the July 10 hearing, the government argued that the executive actions are legally permissible as an exercise of prosecutorial discretion. The government maintains that because it is not able to deport the estimated 11 million undocumented individuals, it exercises discretion in targeting for deportation individuals with criminal records or other aggravating factors. Providing “deferred action status” and work authorization is a reasonable exercise of prosecutorial discretion, it asserted.

The plaintiffs are 26 states that originally challenged the administration’s actions by suit originally filed on December 3, 2014, claimed that the administration violated the “take care clause” of the Constitution (Article II, § 3, clause 5), and notice-and-comment requirements under the Administrative Procedures Act.

Judge Jerry Smith and Judge Jennifer Walker Elrod, two of the three appellate judges who affirmed the injunction against the government on its appeal of the injunction, appeared skeptical of the government’s position. In particular, the judges questioned whether issuance of work authorization for individuals granted deferred status is a benefit unlike prosecutorial discretion.

There is no timetable for issuance of a decision by the Fifth Circuit. The issue is ultimately expected to be decided by the Supreme Court.