Oral arguments in federal court generate lots of light, but very little heat. One thing every appellate lawyer knows is not to predict the outcome of a case based upon oral arguments. The better legal reporters also understand that. Unfortunately, that maxim was not in display in the reporting surrounding the argument on April 17 in the U.S. Court of Appeals for the Fifth Circuit over the government’s motion to lift Judge Andrew Hanen’s DAPA and DACA injunction. A three judge panel held oral arguments on the motion while the cries of protesters in the streets of New Orleans shook the John Minor Wisdom Court House.
The issue before the judges was whether to lift the stay temporarily while the U.S. government appeals the legality of the stay. This was the argument as to whether to “stay the stay.” The appeal of the merits of the DAPA and DACA injunction, which is separate from the motion to stay the stay, will be held in May. At this point, the court must only rule whether the stay should remain in place until after the oral argument next month. Lifting the stay before the appeal is heard in May would be most extraordinary and would be a terrible omen for Texas’ chances in May. However, not lifting the stay is not likely to say very much about the success of the May appeal.
Politico was the most prominent promoter of pessimism over the Obama administrations’ chances after oral argument. The magazine predicted a 2-1 loss for the Obama administration based largely upon the questions asked by Judge Jennifer Elrod and Judge Stephen Higginson. Sitting sphinx-like and silent, Judge Jerry Smith is widely presumed to be hostile to the administration’s program. Thus, Politico reasoned that Judge Elrod’s apparent skepticism reflect that she would join Smith in upholding Judge Hanen’s stay. Law360 also indicated that the Fifth Circuit is likely to be deferential to the Judge’s findings and not disturb his ruling until the appeal can be heard in May. The Law360 article also kept the focus on the big picture of the litigation, making it clear that most educated observers believe that the stay will not survive the merits challenge in light of the 5th Circuit’s decision in Crane. Finally, Buzzfeed was probably the most reluctant to speculate about what the panel may do. Like the others, Buzzfeed felt that Elrod seemed skeptical of the administration whereas Higginson was skeptical of the states’ arguments.
There is no clear timetable about when the panel will rule on the motion. Even if the panel keeps the DAPA and DACA injunction in place, the government is still well-positioned going into oral arguments in May. We will continue to keep you posted and keep you positive.