On Immigration, “A Mistake Has Been Made” And The Supreme Court Must Fix It

Yesterday’s 2/1 decision by the 5th Circuit was expected, given the make-up of the panel.  But the sharp and persuasive dissent authored by Judge Carolyn Dineen King should not be overlooked, as it points the way for the Supreme Court to step in and correct this egregious mistake.

Judge King cogently asserts that, simply put, the Republican assault on Obama’s executive actions does not belong in court:

The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.  That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested parties across the ideological spectrum—Mayors, Senators, Representatives, and law enforcement officials, among others—but also by the district court’s opinion, which repeatedly expresses frustration that the Secretary is “actively act[ing] to thwart” the immigration laws and “is not just rewriting the laws [but is] creating them from scratch.” The majority’s observation that this suit involves “policy disagreements masquerading as legal claims” is also telling.  Whether or not the district court’s characterization of this case is accurate—though the record number of removals in recent years demonstrates that it is not—to the extent some are unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the political process, not in litigation.

King’s biggest swipe is aimed at her colleagues, Judges Jerry E. Smith and Jennifer Walker Elrod, for their inexplicable slow-walking of the decision which threatened to delay Supreme Court review until June 2017, months after President Obama leaves office.

I have a firm and definite conviction that a mistake has been made.

King writes,

That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal.  There is no justification for that delay.

I dissent.

That’s some very tough language.  And it raises the obvious question—which many have been asking since the panel failed to decide the case within the 5th Circuit’s 60 day decision target: Did Judges Smith and Elrod intentionally delay their decision?

As King correctly observes, in March the 5th Circuit granted the Department of Justice’s request to fast-track the case.  On July 10, Smith, Elrod and King heard argument on the merits of the case.  Why then did it take four long months for the panel to decide; especially when there was little doubt about what Smith and Elrod were going to do?

Nearly everyone watching the case knew the two Republican appointees were all but certain to side with the GOP challenge to Obama’s deferred action program. That’s because in May they both refused to temporarily lift Hanen’s hold on the administration’s immigration actions, stating: “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”

King is right to highlight the court’s incomprehensible delay, which exemplified the legal maxim “Justice Delayed Is Justice Denied.”  This case does not just involve legal principles, it involves the lives of 5 million American children and their parents.

On the merits the ruling was hardly a surprise.  The 5th circuit appeals court is considered by many to be the most conservative federal appeals court in the country, and Judges Smith and Elrod are among the most conservative judges on the court. Most observers expected them to side with the Republican governors and attorneys general that filed the case in the courtroom of U.S. District Judge Andrew Hanen of Brownsville, Texas who earlier this year blocked President Obama’s immigration executive actions from being implemented.

At bottom, Smith’s and Elrod’s decision yesterday was a more detailed version of their order earlier this year refusing to lift the hold that Hanen had put on the executive actions.  In her dissenting opinion King methodically and convincingly dismantled their reasoning.  Her forceful analysis, which provides a clear roadmap for the Supreme Court to reverse the 5th Circuit decision, is perhaps best summarized by King herself:

Even if this case were justiciable, the preliminary injunction, issued by the district court, is a mistake. If the [President’s deferred action guidance] is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements, and the injunction cannot stand.  Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA’s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws as to over four million illegal aliens.”…That conclusion is clearly erroneous.  The majority affirms and goes one step further today.  It holds, in the alternative, that the Memorandum is contrary to the INA and substantively violates the APA.  These conclusions are wrong.  The district court expressly declined to reach this issue without further development…and the limited briefing we have before us is unhelpful and unpersuasive.  For these reasons, as set out below, I dissent.

King also correctly makes a point of reminding her colleagues that deferred action to shield undocumented immigrants is nothing new. It dates back to the Eisenhower administration and has been used by every president since; the most notable example being the “Family Fairness” policy implemented by Presidents Ronald Reagan and George Bush, Sr.  As King writes:

Much like pretrial diversion in the criminal context—which also developed over a period of decades without express statutory authorization—deferred action channels limited resources by allowing certain low-priority offenders to work openly and contribute taxes, thus reducing their burden on the system.  Notably, such prosecutorial discretion is heightened in the immigration context.

It may seem counter-intuitive, but in legal terms yesterday’s decision was actually good news for supporters of Obama’s immigration executive actions and for the millions of DREAMers, American children, and parents who have been patiently waiting for justice.  There is still time for the U.S. Supreme Court to take it up this term and make a decision by June.

Of course the Department of Justice must now do everything in its power to get the case before the U.S. Supreme Court immediately.  And once it gets there will be incumbent on the Supreme Court to clean up the integrity that 5th Circuit majority besmirched; to decide the merits of the GOP assault on Obama’s immigration actions without politicizing the case on a partisan basis; to base its decision on facts and precedent rather than conjecture, and do it without engaging in political delays.

[Update:  The Department of Justice has announced it will petition the U.S. Supreme Court to hear its appeal of the 5th Circuit Appeals Court decision]

What to watch for in the appeal of the Texas #immigration lawsuit to the 5th Circuit

Originally posted by America’s Voice

by David Leopold

In March, the 5th Circuit appeals court granted the Obama Administration’s request to fast-track its appeal of Judge Hanen’s preliminary injunction which temporary blocked implementation of DACA expansion and DAPA. The Administration and the plaintiff states agreed to a briefing schedule which requires that all written arguments be filed with the appeals court by the third week in May.

In the meantime, on April 17, the court of appeals will hear oral argument on the Obama Administration’s request that it stay (or temporarily postpone) the hold Judge Hanen placed on DACA expansion and DAPA when he issued his preliminary injunction on February 16.

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 (temporarily postpone) the injunction while the court of appeals considers the case.  In effect, what the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire case.  So the April 17 hearing is not the final hearing on the appeal.  If, for some reason, the court of appeals does not postpone the injunction that doesn’t mean the Obama Administration has lost the appeal.  It just means the court of appeals has decided to continue to let Judge Hanen’s temporary delay of DACA expansion and DAPA stay in place while they consider the case.

It’s confusing.  But the upshot is that while the April 17 hearing is very important, it’s hopefully just another step along the way to getting the GOP lawsuit thrown out of court—where it belongs.

The appeals court has not yet scheduled Oral argument on the appeal of the preliminary injunction itself. That should happen toward the end of May 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 sometime in June or July.  That means that regardless of whether or not the Court of Appeals temporarily lifts the injunction after the April 17 hearing, if the Obama Administration wins the appeal the delay to DAPA/DACA expansion could be no more than a few weeks.

Stay tuned.

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