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Executive Action: What’s Next?

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Following is a column by Maribel Hastings, Senior Advisor at America’s Voice, translated from Spanish to English. The original Spanish-language version is available to read here.

The decision by the 5th Circuit Court of Appeals in New Orleans, announced this Tuesday, which sustained the injunction against the implementation of President Obama’s executive actions was disappointing but also expected.

The obvious implication is that the millions of undocumented immigrants who stand to benefit from the expansion of the Deferred Action for Childhood Arrivals (DACA 2014) and the new Deferred Action for Parental Accountability (DAPA) continue to wait for temporary relief from deportation that would also grant them a work permit.

For the immigrant community that is watching this unfold, the question becomes what is next?  Months ago, the Obama Administration promised to fight tooth and nail to be able to implement these programs.  What does that look like?

The Department of Justice (DOJ) just announced that they will not take one of the available legal avenues, which was to ask the U.S. Supreme Court to step in on an emergency basis and stay the injunction against the executive actions put in place by Texas federal District Judge, Andrew Hanen, and upheld by the 3-judge panel in the 5th Circuit this Tuesday.

There are at least three legal venues in this case and while the path forward in the 5th Circuit and potentially the U.S. Supreme Court are being debated, Judge Andrew Hanen still has not made his ruling regarding the constitutionality of the executive actions.  But given the injunction and his stated opposition, no one believes he will actually declare them constitutional and that is why all the attention is now shifting to the 5th Circuit and the Supreme Court.

Following are some possible legal scenarios:

What next steps can the Department of Justice now take?

The Department of Justice can ask the entire 5th Circuit Court of Appeals – all 15 Judges, en banc — to reconsider the decision that keeps the injunction in place.  The questions are first, whether the entire 5th Circuit would actually take up the case and second, if that would result in a decision favorable to the Justice Department or not—considering that a panel of three judges from the same court ruled against them on Tuesday. Would DOJ want to risk another adverse ruling from the full circuit court?

DOJ already said that they will not ask the Supreme Court for an emergency stay of Judge Hanen’s injunction, which was sustained by the 5th Circuit on Tuesday.  Again, the question was whether the Department of Justice wanted to risk another bad decision at the Supreme Court level. Instead, it seems DOJ prefers to focus all of their energy on arguing against the injunction on the merits before the 5th Circuit on July 10th.

Since there was already a bad decision on the question of whether to lift the injunction blocking the executive actions, what real possibilities exist that the 5th Circuit will rule in favor of the Justice Department in the appeal of Hanen’s injunction on the merits?

On July 10th, another panel of three judges in the 5th Circuit will hear arguments on the Department of Justice’s appeal of Judge Hanen’s initial February injunction.  “The question before the 5th Circuit will be whether there was a legal basis for Hanen to impose the injunction,” said Marshall Fitz, Vice President of Immigration Policy at the Center for American Progress (CAP).

The plaintiff states, led by Texas, have to prove that they have the legal standing to sue the Federal government and stop the executive actions, and that the implementation of said actions will cause irreparable harm to the states.  Once the arguments are heard, there is no deadline for when the 5th Circuit will issue a ruling.  It could be weeks or months.  If the decision goes against the Department of Justice, the executive actions will remain blocked and the Federal government can ask for another review by all 15 judges on the 5th Circuit (en banc). They could also appeal the decision directly to the U.S. Supreme Court.

The 5th Circuit could also determine that the states lack the legal authority (standing) to sue or that they will not suffer irreparable harm if the executive actions are implemented.  In that case, implementation can go forward. However, considering the negative decision reached this Tuesday over the emergency stay motion, some legal experts think that it is unlikely the 5th Circuit will rule in the Justice Department’s favor on the merits.

Another option is that the 5th Circuit could decide to limit the injunction to the state that initiated the lawsuit, Texas, or the 26 plaintiff states, and allow implementation to go forward in the rest of the country.

For Fitz, it’s complicated to anticipate which strategy the Justice Department will take, because each one carries its own risks.

“To continue with the litigation on front of Judge Hanen is not a recipe for success because we know how he is going to rule. He has made it abundantly clear that he thinks these programs are unconstitutional,” he said.

“Or they can wait until the 5th Circuit issues a ruling on the merits of the preliminary injunction, We can anticipate what that ruling will be because they kind of made it clear on Tuesday that they will uphold the preliminary injunction, and then appeal that to the Supreme Court….The Supreme Court will not hear this case until the next term which starts this fall and ends in June (of 2016),” Fitz explained.

“The likelihood of implementation [of the executive actions] soon, like in the next couple of months, has diminished…. We’re talking about a potentially significant delay here”, said Fitz.

But he added that as soon as there is a green light to go forward they will accelerate implementation to the maximum so the program gets off the ground before the next Administration takes office to make it harder for the next President to undue them if he or she opposes the executive actions.  Obama is President until January 2017.

It’s probably also that the government is looking for other alternatives at the administrative level, although those too carry their own litigation risks.

Will the executive actions be implemented before Obama’s presidency is over?  The clock is ticking, and the 2016 election is approaching.