The Court of Appeals for the 5th Circuit in a 2-1 decision refused the Obama administration’s request for an emergency stay of Judge Andrew Hanen’s injunction against the President’s deferred action (DAPA and DACA+). This action leaves the stay in place, meaning that the administration remains unable to proceed with DAPA and DACA relief to millions of immigrants. Two judges of the 5th Circuit found that the Obama administration was “unlikely to succeed” in establishing that Texas and the other 25 states lack a sufficient injury, or “standing,” to challenge the President’s actions in creating DAPA and DACA+.
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.
The Texas judge’s decision to enjoin the government from implementing DAPA and extended DACA has brought the administration’s executive action program to a screeching halt just as thousands were getting ready to file for extended DACA today, February 18, 2015. Instead, people are trying to unearth the procedures for seeking a “stay of the stay” at the Fifth Circuit. Media reports have already surfaced that the administration will not seek emergency review of the stay, raising the specter that the entire executive action program will be on hold for many months.