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.
It seems that nothing is going to happen on the Texas judge’s DAPA and DACA injunction until next month at the earliest. The U.S. Court of Appeals for the Fifth Circuit issued a series of orders yesterday that gave an indication of how the court intends to proceed with the Department of Justice’s appeal of Judge Andrew Hanen’s DAPA and DACA injunction, Most importantly, the Court of Appeals set oral arguments on the Department of Justice’s motion to lift the injunction (“stay the stay”) for April 17.
While the junior senator from Texas dominates the news, we remain more concerned about what is happening in a court house in Texas and another in New Orleans– the U.S. District Court in Harlingen where Judge Andrews Hanen sits and the U.S. Court of Appeals for the Fifth Circuit which must hear the Department of Justice’s emergency appeal of Judge Hanen’s injunction against DAPA and expanded DACA.