It’s not a final ruling on the merits of the challenge to executive amnesty, but it’s a decent indication of where the courts will end up on the question. Given the opportunity to lift the temporary injunction against Barack Obama’s executive actions to expand immigration clemency and to allow for work permits, the Fifth Circuit Court of Appeals instead kept it in place while the lawsuit from 26 states proceeds in district court:
A federal appeals court refused Tuesday to lift a temporary hold on President Barack Obama’s executive action that could shield as many as 5 million immigrants illegally living in the U.S. from deportation.
The U.S. Justice Department had asked the 5th U.S. Circuit Court of Appeals to reverse a Texas judge who agreed to temporarily block the president’s plan in February, after 26 states filed a lawsuit alleging Obama’s action was unconstitutional. But two out of three judges on a court panel voted to deny the government’s request. …
Justice Department lawyers sought a stay while they appealed the injunction. They argued that keeping the temporary hold interfered with the Homeland Security Department’s ability to protect the U.S. and secure the nation’s borders. They also said immigration policy is a domain of the federal government, not the states.
But, in Tuesday’s ruling, 5th Circuit judges Jerry Smith and Jennifer Walker Elrod denied the stay, saying in an opinion written by Smith, that the federal government lawyers are unlikely to succeed on the merits of that appeal. Judge Stephen Higginson dissented.
That’s bad news for the White House, which had painted this as a common-sense use of executive power and the injunction as unnecessary. They weren’t exactly subtle about their estimation of the Obama administration’s arguments, either:
— Phil Kerpen (@kerpen) May 26, 2015
There was also this:
The states say the injunction maintains the separation of powers and ensures that a major new policy undergoes notice and comment. And as a prudential matter, if the injunction is stayed but DAPA is ultimately invalidated, deportable aliens would have identified themselves without receiving the expected benefits. The public interest favors maintenance of the injunction, and even if that were not so, in light of the fact that the first three factors favor the states and that the injunction merely maintains the status quo while the court considers the issue, a stay pending appeal is far from justified.
In fact, the decision runs 42 pages, and the dissent another 26. The appellate court took up what appears to be the entire case, and not just the question of lifting the injunction. The 2-1 majority found the arguments from the states prevailing in all instances (“The remaining factors also favor the states”), which sends a signal to the district court that would not be missed even if the judge there wasn’t already unhappy with the Obama administration’s conduct in the case.
The White House can appeal this to the Fifth Circuit en banc or to the Supreme Court, but neither will likely go so far afield from this encyclopedic takedown to lift an injunction while the district court hears the lawsuits. The Obama administration may be better advised at this point to stick to the district court and appeal the eventual overturning of its executive amnesty.