U.S. to appeal 5th Circuit Court of Appeals immigration executive orders decision to SCOTUS

Back in July the 5th Circuit Court of Appeals hearD oral argument in Obama immigration executive orders appeals. I posted at the time:

Most Court observers believe this three judge panel of the 5th Circuit, the most conservative activist court of the appellate courts, will side with the states against the Obama administration. The Hill reported prior to oral argument, Obama’s immigration orders face dim outlook at federal court .

The losing side will seek en banc review by the full Fifth Circuit Court of Appeals and/or appeal to the U.S. Supreme Court — which means the immigration executive orders would be heard by the U.S. Supreme Court in the middle of a presidential election year, emphasizing the GOP’s anti-immigration stance as the Mass Deportation Party with Latino voters.

As anticipated, this panel of the 5th Circuit ruled 2-1 against the Obama administration on Monday, after an extraordinary delay for an expedited case. Appeals Court Deals Blow to Obama’s Immigration Plans:

A federal appeals court said Monday that President Obama could not move forward with his plans to overhaul immigration rules by providing up to five million people with work permits and protection from deportation.
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A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled 2 to 1 against an appeal by the Obama administration, saying a lawsuit brought by 26 states to block Mr. Obama’s actions was likely to succeed at trial.

But the ruling may have come just soon enough to allow Mr. Obama’s lawyers to appeal the decision to the Supreme Court for consideration next year. Administration officials are hoping that the Supreme Court will overturn the lower-court rulings and let the president carry out his immigration program.

The Obama administration will file a petition for certiorari to the U.S. Supreme Court. Lyle Denniston at SCOTUSblog reports, U.S. to appeal immigration case to the Court:

In what could be a race against the judicial clock, the Obama administration said Tuesday that it will ask the Supreme Court to let it begin enforcing its program to spare more than four million undocumented immigrants from being deported.  If the legal filings are not sent in quickly, and the case is not put on an expedited schedule, the Court may not have time to decide it during the current Term.

If the case were to be put off until the next Term, it almost certainly would not be decided until after the 2016 presidential election, and the fate of the program may well be affected by who next occupies the White House.

On Monday night, a divided panel of the U.S. Court of Appeals for the Fifth Circuit blocked enforcement of the law — as a federal trial judge had done last February — but the appeals court went even further than that judge had, finding that President Barack Obama would ultimately be found to have no legal authority to adopt the deferred deportation scheme announced one year ago.

Under the program, some 4.3 million individuals who are in the country illegally and are the parents of a son or daughter who is a U.S. citizen or lawful permanent resident could apply to stay in the country, get a work permit, and qualify for a variety of public benefits.  They also could apply to state governments for driver’s licenses.

Besides blocking that program, the Fifth Circuit’s order also postpones the planned expansion of a 2012 program that has allowed more than 600,000 young people, brought to this country by their undocumented immigrant parents, to stay in the country and gain other benefits.  The expansion would have added millions more to that separate program.

After the ruling, a Justice Department spokesman, Patrick Rodenbush, issued this statement: “The Department of Justice remains committed to taking steps that will resolve the immigration litigation as quickly as possible in order to allow [the Department of Homeland Security] to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children.  The Department disagrees with the Fifth Circuit’s adverse ruling and intends to seek further review from the Supreme Court of the United States.”

Under the Supreme Court’s rules, the administration would have ninety days from Monday to ask it to review the case.  However, waiting that long would push well beyond the time in late January when the Court would have finished filling its docket for oral arguments and decisions this Term.

Thus, the government is expected to file appeal papers promptly and would be likely to ask that the case be expedited.  It is conceivable that the Court could schedule oral argument beyond late April when it usually finishes hearing oral arguments in cases to be decided in that Term.

The deferred deportation program was challenged in federal court by twenty-six states in a federal district court in Brownsville, Texas, along the state border with Mexico.  Judge Andrew Hanen in mid-February imposed a temporary order against enforcement, which the Fifth Circuit upheld on Monday evening.  It was not a final order striking down the program, but put it on hold until there is a full trial of the case in Judge Hanen’s court.

The Fifth Circuit ruling was written by Judge Jerry Smith, and it was joined by Judge Jennifer Walker Elrod.  Judge Carolyn Dineen King dissented, accusing the majority of making a mistake.

Although the states, in their challenge, had added a constitutional protest to their other claims under federal law, arguing that the president had failed in his constitutional duty to execute existing immigration law, neither Hanen nor the Fifth Circuit decided that issue.

The trial judge kept his ruling narrow, finding only that the Obama administration had failed to put up its program for public notice and comment before adopting it, a procedural violation under the Administration Procedure Act, if that claim is ultimately proved at the trial.

The Fifth Circuit agreed with Hanen on that point, but went further, and ruled that the states were also likely to win on their claim — also under the APA — that the government simply lacked authority to adopt the program because Congress had passed laws that fully control when undocumented immigrants can be given a right to stay in the country or a right to receive public benefits.

The Fifth Circuit said that was an alternative basis to the APA procedural claim that justified putting the program on a further hold, pending the actual trial.

The administration is free to ask the Supreme Court to review the case, even though the two lower courts issued their rulings prior to an actual trial on the states’ challenge.

David Leopold explains On Immigration, “A Mistake Has Been Made” And The Supreme Court Must Fix It:

Yesterday’s 2/1 decision by the 5th Circuit was expected, given the make-up of the panel.  But the sharp and persuasive dissent authored by Judge Carolyn Dineen King should not be overlooked, as it points the way for the Supreme Court to step in and correct this egregious mistake.

Judge King cogently asserts that, simply put, the Republican assault on Obama’s executive actions does not belong in court:

The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.  That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested parties across the ideological spectrum—Mayors, Senators, Representatives, and law enforcement officials, among others—but also by the district court’s opinion, which repeatedly expresses frustration that the Secretary is “actively act[ing] to thwart” the immigration laws and “is not just rewriting the laws [but is] creating them from scratch.” The majority’s observation that this suit involves “policy disagreements masquerading as legal claims” is also telling.  Whether or not the district court’s characterization of this case is accurate—though the record number of removals in recent years demonstrates that it is not—to the extent some are unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the political process, not in litigation.

King’s biggest swipe is aimed at her colleagues, Judges Jerry E. Smith and Jennifer Walker Elrod, for their inexplicable slow-walking of the decision which threatened to delay Supreme Court review until June 2017, months after President Obama leaves office.

I have a firm and definite conviction that a mistake has been made.

King writes,

That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal.  There is no justification for that delay.

I dissent.

That’s some very tough language.  And it raises the obvious question—which many have been asking since the panel failed to decide the case within the 5^th Circuit’s 60 day decision target: Did Judges Smith and Elrod intentionally delay their decision?

* * *

King is right to highlight the court’s incomprehensible delay, which exemplified the legal maxim “Justice Delayed Is Justice Denied.”  This case does not just involve legal principles, it involves the lives of 5 million American children and their parents.

On the merits the ruling was hardly a surprise.  The 5^th circuit appeals court is considered by many to be the most conservative federal appeals court in the country, and Judges Smith and Elrod are among the most conservative judges on the court. Most observers expected them to side with the Republican governors and attorneys general that filed the case in the courtroom of U.S. District Judge Andrew Hanen of Brownsville, Texas who earlier this year blocked President Obama’s immigration executive actions from being implemented.

At bottom, Smith’s and Elrod’s decision yesterday was a more detailed version of their order earlier this year refusing to lift the hold that Hanen had put on the executive actions.  In her dissenting opinion King methodically and convincingly dismantled their reasoning.  Her forceful analysis, which provides a clear roadmap for the Supreme Court to reverse the 5^th Circuit decision, is perhaps best summarized by King herself:

Even if this case were justiciable, the preliminary injunction, issued by the district court, is a mistake. If the [President’s deferred action guidance] is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements, and the injunction cannot stand.  Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA’s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws as to over four million illegal aliens.”…That conclusion is clearly erroneous.  The majority affirms and goes one step further today.  It holds, in the alternative, that the Memorandum is contrary to the INA and substantively violates the APA.  These conclusions are wrong.  The district court expressly declined to reach this issue without further development…and the limited briefing we have before us is unhelpful and unpersuasive.  For these reasons, as set out below, I dissent.

King also correctly makes a point of reminding her colleagues that deferred action to shield undocumented immigrants is nothing new. It dates back to the Eisenhower administration and has been used by every president since; the most notable example being the “Family Fairness” policy implemented by Presidents Ronald Reagan and George Bush, Sr.  As King writes:

Much like pretrial diversion in the criminal context—which also developed over a period of decades without express statutory authorization—deferred action channels limited resources by allowing certain low-priority offenders to work openly and contribute taxes, thus reducing their burden on the system.  Notably, such prosecutorial discretion is heightened in the immigration context.

It may seem counter-intuitive, but in legal terms yesterday’s decision was actually good news for supporters of Obama’s immigration executive actions and for the millions of DREAMers, American children, and parents who have been patiently waiting for justice.  There is still time for the U.S. Supreme Court to take it up this term and make a decision by June.

Ian Millhiser at Think Progress also says the decision may be good news for supporters of Obama’s immigration executive actions. The Obama Administration Just Lost A Massive Immigration Case. That’s Actually Good News For Obama:

If Solicitor General Donald Verrilli is able to get a petition before the Supreme Court asking them to hear the Fifth Circuit’s decision by the middle of this month, then it is possible that the case will be decided by the end of June. If Verrilli is unable to do so (perhaps because Smith and Elrod took to long to hand down a decision for Verrilli to appeal) the Supreme Court’s resolution of the case would most likely wait until next June 2017 — months after President Obama leaves office.

With Smith and Elrod’s opinion finally coming down on November 9, Verrilli and his colleagues are now in a race against the clock to submit a petition to the justices before time runs out. There’s no way to be certain when Verrilli must submit this petition to avoid delaying resolution of this case another year. It is likely that the solicitor general may still have a few precious days to submit the petition — though the deadline may have already passed.

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It should be noted that this middle-of-November deadline is far from firm. In the Court’s 2013-14 term, for example, Court’s docket filled up much quicker than in the Obergefell term. Nevertheless, the fact that the Fifth Circuit’s decision is now out at least gives the Justice Department a possibility of making the Supreme Court’s deadline — and, potentially, to ask the justices to expedite their decision given the unusual significance of this case.

* * *

Now, at least, the Justice Department can take this case to the panel of nine justices who were always likely to weigh in on the programs’ fate from the beginning.