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David Leopold: Obama’s Appeal Of The Texas GOP Anti-Immigrant Lawsuit Remains Strong

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Cross-posted from David Leopold’s blog:

This morning the 5th Circuit announced the three judge panel that will hear the Obama Administration’s motion to stay (lift) Judge Hanen’s order temporarily blocking DACA expansion and DAPA; and, as expected, it’s a very conservative panel.  Ian Millhiser of thinkprogress.com described the panel—which includes, Judges Jerry E. Smith (Reagan appointee), Jennifer Walker Elrod (G.W. Bush appointee) and Stephen A. Higginson (Obama appointee)—this way:

Two members of the three-judge panel that will decide whether to reinstate these programs are extraordinarily conservative judges. One of them once described himself, admittedly somewhat jokingly, as a former ‘right-wing activist.’

But here’s the good news.  These judges are not likely to decide the Obama Administration’s full appeal.  Their job is to rule on the Administration’s motion to temporarily lift Judge Hanen’s order so DACA expansion and DAPA can begin to go forward while the 5th circuit appeals court decides the full appeal of the preliminary injunction.

Importantly, the April 17 hearing is not a hearing on the appeal of Judge Hanen’s preliminary injunction.  It is a hearing on the Obama Administration’s motion to stay (lift) the injunction while the court of appeals considers the appeal.  In effect, the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire appeal.  If this panel does not postpone the injunction it will disappointing for sure, but it doesn’t mean the Obama Administration will have lost the appeal.  It will just mean the panel will have decided to continue to let Judge Hanen’s temporary delay of DACA expansion and DAPA stay in place while the 5th circuit considers the full appeal of Judge Hanen’s order temporarily blocking the President’s actions on deportation.

It’s confusing.  But the upshot is that while today’s announcement may be a Monday morning bummer, it’s hardly a death knell to the Obama Administration’s appeal or the underlying case.  The appeals court has not yet scheduled oral argument on the full appeal of the preliminary injunction itself. Nor has it released the names of the three judge panel that will hear it.  That should happen near the end of May or beginning of June once the parties are finished briefing the case.

Given the fast track briefing schedule, the 5th Circuit Court of Appeals could issue a decision on the Obama Administration’s full appeal of the preliminary injunction sometime in June or July.  That means that regardless of whether or not the Court of Appeals temporarily lifts the injunction after Friday’s hearing, if the Obama Administration wins the full appeal, DACA expansion and DAPA could be back on track this summer.

Finally, regardless of the makeup of this or the panel that hears the full appeal, the law and facts are solidly on the side of the President’s immigration executive actions.  As a panel of the 5th circuit recently emphasized in Crane vs Napolitano the law of standing–which is the major issue in this appeal–is designed to keep politics out of the courtroom. And a court should be especially careful, the 5th appeals court cautioned, when it’s being asked to decide that an executive policy is unconstitutional.