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+. The third judge found that the question of the appropriateness of DAPA and DACA was a political one that the judiciary should take no role in. The practical impact of this ruling is that DAPA And DACA+ will continue to be indefinitely delayed and the hopes of small immigration relief for millions of families will be put on hold even longer.
How long before DAPA and DACA+ can go forward? We know it will be no sooner than July. The 5th Circuit has scheduled a hearing on the appeal of the injunction for July 10, 2015. The ruling that just came down was for an expedited ruling on the injunction (the “stay of the stay”). The next hearing is whether the stay was legally justified. It is hard to be optimistic about the administration’s chances in that hearing. This is because the 5th circuit just ruled that the administration was not “likely to succeed” in this litigation. The July 10 hearing is the litigation that the 5th Circuit was referring to when they wrote that. If you are looking for a silver lining to this cloud, you can take some solace that only two of seventeen judges of the 5th Circuit reached this decision. It is not guaranteed that the July 10 hearing will have the same panel. A different panel could very well have a different idea about the merits of this litigation. We will only know when the court reaches its next decision.
It is hard right now to see much good in the administration’s legal defense of DAPA and DACA+. As this litigation grinds to a conclusion, the President continues to reinforce his status as deporter-in-chief, proceeding apace with its historic numbers of deportation. With all hope for Congressional accommodation long gone, the administration continues to detain women and children on the border in inhumane conditions and work aggressively to remove thousands. Meanwhile, a more ambitious solution remains within the President’s reach if the administration has the courage to embrace it.