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Everything You Need to Know About the Fifth Circuit’s Stay Denial in Two Pieces
Yesterday, in no surprise to close watchers of the federal courts, the Fifth Circuit Court of Appeals in New Orleans denied the Department of Justice’s (DOJ) request for an emergency “stay” of the injunction on the President’s Deferred Action for Parental Accountability (DAPA) and expanded Deferred Action for Childhood Arrival (DACA) programs. Following this news, many have been left to speculate about how this impacts the merits of DOJ’s appeal moving forward; how to reconcile the strong dissenting opinion from Judge Stephen Higginson in contrast to his two extraordinarily conservative colleagues; and what this means as immigration continues to get injected into the 2016 election cycle.
Today, David Leopold, one of the nation’s foremost experts on immigration law, and Greg Sargent, Plum Line blogger for the Washington Post, provide useful insights.
Leopold, a Cleveland-based immigration attorney and former President of the American Immigration Lawyers Association, writes a blog entitled, “No surprise from 5th Circuit on immigration, but Judge Hanen’s reliance on ‘sublime intelligences’ exposed”:
“Yesterday’s refusal to lift the injunction comes as no surprise. The 5th Circuit Appeals court is considered by many to be the most conservative federal appeals court in the county and the two Republican appointed judges who declined to lift the stay, Jerry E. Smith and Jennifer Walker Elrod, are among the most conservative judges on the court. In a very narrowly tailored opinion they reasoned that the State of Texas would be harmed as a result of increased driver’s license costs due to DAPA and that the executive actions likely violate the technical rule making requirements of the Administrative Procedures Act.
“But the real news yesterday was the powerful, well-reasoned dissent of Judge Higginson, an Obama appointee, who reminded his colleagues in no uncertain terms that Texas’ complaint against President Obama’s deferred action programs should be thrown out of court. ‘I would hold,’ Higgenson wrote, ‘that Supreme Court and Fifth Circuit case law forecloses plaintiffs’ arguments challenging in court this internal executive enforcement guideline.’
“But Higgenson didn’t stop there. Using respectful, even deferential, language, he took aim not at his colleagues, but at Judge Hanen, the Brownsville Texas judge who’d entered the injunction at the request of the Republican Governors and Attorneys General who’d filed the case in his courtroom. With the deft use of genteel prose Higginson hammered Hanen hard, all but calling him out for playing fast and loose with the law and facts—something Professor Anil Kalhan has termed Hanen’s ‘Judicial Truthiness.’
“In a particularly biting rebuke to Hanen’s claim that Obama’s November 20, 2014 deferred action memorandum constitutes a refusal to enforce the immigration law, Higginson wrote that Hanen’s ‘twofold extrapolation—focusing not on [the deferred action guidance] itself set against current law, but instead on an embellishment of it set against a perceived imperative to remove all illegal immigrants—rests on sublime intelligences…’
“…Unfortunately, Jerry Smith and Jennifer Elrod, the two judges who refused to lift the injunction, took the same confusing and circuitous route Hanen did to get to where they got. That path required them to give short shrift to what Higginson described as ‘the four corners’ of the deferred action guidance, coupled with inappropriate speculation and guesswork—speculation and guesswork which is necessary to success of the Texas litigation because, as Higginson observed, the executive actions on deportations have ‘yet to go into effect, and no evidentiary hearing was held, the record is underdeveloped and contains considerable conjecture, and conjecture is guided by feeling…’
“…Had Smith and Elrod focused on what the DACA expansion and DAPA guidance actually says—not what the GOP governors and attorneys general who brought the Texas lawsuit say it says—yesterday’s decision would have likely gone the other way and lifted Hanen’s injunction. As Higginson reminded his two colleagues seemingly out of frustration, the deferred action guidance is founded on well settled, long-standing principles of prosecutorial discretion which are firmly rooted in the law. ‘On this record,’ Higginson wrote, ‘as well as focusing below on the four corners off the November 20 [DACA expansion and DAPA guidance], I would say DHS is adhering to law, not derogating from it.’
“When the 5th Circuit appeals court hears the full appeal on July 6 it will, of course, have to carefully consider the opinion of Judges Smith and Elrod. But the appeals court will also have to take into account Judge Higgenson’s authoritative dissent which instructs the court—and the public at large—in a clear, well-reasoned voice, that the GOP Texas lawsuit against DACA expansion and DAPA is nothing more than a partisan attack masquerading as a lawsuit…
“…No question, yesterday’s panel decision is a setback for mixed immigration status American families across the U.S. who fear losing a loved one to deportation. But it’s a delay, not the death knell for DACA expansion and DAPA.
“And it’s certainly not last word on President Obama’s executive actions on deportations.”
Greg Sargent piled on with cogent political analysis a piece entitled, “Is GOP again shooting itself in foot with Latinos?”:
“Republicans have long tried to frame the debate over Obama’s executive actions as purely about Obama’s lawless overreach. In reality, in voting to roll back those actions, House Republicans also voted to reverse the underlying enforcement priorities the President has instituted — priorities that focus more on removing serious offenders, while de-emphasizing the focus on removing undocumented immigrants who are low-level offenders and have jobs and longtime ties to communities.
“In supporting Obama’s executive actions, Hillary Clinton has also embraced those underlying enforcement priorities, declaring that people with ‘deep ties and contributions to our communities deserve a chance to stay.’ Democrats will portray continued GOP opposition to those enforcement priorities as a sign that Republicans have only moved to the right on immigration. This is surely not where GOP operatives had hoped to be. Remember that the GOP autopsy into what went wrong in 2012 explicitly noted that Republicans have to signal a more welcoming posture towards Latinos, to get them to listen to the GOP on other issues.
“Also consider the timing. The 5th Circuit has only ruled on an injunction to halt Obama’s actions, and not on the underlying legal dispute. That dispute could drag on well into 2016, when the presidential race will be on full boil. And the eventual GOP nominee will have pledged to roll back all of Obama’s deportation relief.
“Some say that there is little risk for Republicans in opposing his executive actions, because if anything, white swing voters probably oppose them. But remember, what will probably matter most about the politics of this fight for 2016 is how it impacts the impressions of the two parties formed among Latinos. And the non-white vote is poised to matter more in 2016 than in 2012, both in the presidential race and in the key states where top Senate races will be decided.
“To be fair, it’s possible the GOP nominee could successfully neutralize the downside of opposing Obama’s executive actions by proposing a comprehensive immigration reform plan that includes some form of legalization. And there’s no question that Jeb Bush (who has spoken of the positive contribution undocumented immigrants might make to American life) and Marco Rubio (who is of Cuban descent and championed the Senate bill) can plausibly claim they’d likely fare better among Latinos than Romney did.
“Still, one wonders whether GOP operatives — the ones who are actually paid to win national elections — privately like what they’re seeing here. My bet is they don’t.”