(Update) 5th Circuit to hear immigration orders appeal on April 17

5thCircuitWe now know who is serving on the three judge panel of the 5th Circuit Court of Appeals hearing the Obama administration’s appeal from the order of Judge Andrew Hanen of the U.S. District Court for Texas this Friday.

For those of you who are unaware, the 5th Circuit Court of Appeals is the most conservative-dominated appellate court. It has to do with the states that make up the 5th Circuit.

But this panel of judges is particularly fringe conservative. So when it rules in favor of Judge Andrew Hanen, lazy media villagers will hail this as a defeat for the Obama administration and immigrants waiting in the DACA and DAPA programs. They will repeat every ignorant comment that a Tea-Publican politician makes without qualification or clarification, because that is what they do.

But the decision of this panel will eventually be appealed en banc to the full 5th Circuit Court of Appeals and to the U.S. Supreme Court, where recent decisions on immigration law have been in favor of the administration. And then the lazy media villagers will quote every Tea-Publican decrying the decision as the end of the Constitution and the Republic, rather than describing it as a victory for the Obama administration and the DREAMers, because that is what they do.

Ed Kilgore at the Political Animal blog gets it exactly right. It’ll Get Worse Before It Gets Better on Immigration Actions:

The people who are trying to overturn the president’s executive actions in immigration chose carefully in venue-shopping for a judge like Andrew Hanen, a man with quite the history on the subject. They also knew Hanen’s court was in the most conservative Court of Appeals circuit, the 5th, improving the odds the district judge’s angry rant of an opinion might survive the first stage of appeal.

But the plaintiffs got really lucky in the selection of the three-judge panel who will hear the appeal at the 5th Circuit, as explained by ThinkProgress’ Ian Millhiser:

Judge Jerry E. Smith’s presence on the panel that will hear oral arguments in Texas v. United States on Friday is simply a disaster for the DAPA and expanded DACA programs. Smith, the self-described former right-wing activist, once described feminists as a “gaggle of outcasts, misfits and rejects.” He is one of five judges on the Fifth Circuit who once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial. In a case involving an obscure provision of the Affordable Care Act, Smith badgered a Justice Department attorney and ordered the department to produce a letter explaining whether they agreed with an inartful statement by President Obama.

Smith’s conservatism is tribal and, at times, belligerent. It would be very surprising if he cast a vote in favor of politically controversial programs spearheaded by Barack Obama.

He is joined on the panel by Judge Jennifer Elrod. Elrod is a George W. Bush appointee, while Smith is a Reagan appointee, so her record is not as thick as Judge Smith’s. Nevertheless, in her eight years on the bench she has generally behaved as a loyal conservative….

Elrod’s record on immigration suggests that she will take a similarly conservative approach. In Villas at Parkside Partners v. City of Farmers Branch, the full Fifth Circuit voted 9-5 to strike down a local ordinance that effectively made it a crime for undocumented immigrants to rent a home. Elrod dissented from this decision, claiming, somewhat improbably, that the ordinance “does not constitute a regulation of immigration.”

The third judge is an Obama appointee, but will likely be outnumbered. If this transpires as expected, then the administration will have to appeal to the full 5th Circuit, and if that fails, to SCOTUS. Unless the full 5th Circuit or SCOTUS intervenes to give the affected immigrants relief pending the appeals, Hanen’s order against implementation of Obama’s executive actions will remain in force. That the ultimate disposition of the case looks a lot more positive for the administration is cold comfort for those needing help right now.

But the plaintiffs got really lucky in the selection of the three-judge panel who will hear the appeal at the 5th Circuit, as explained by ThinkProgress’ Ian Millhiser:

Judge Jerry E. Smith’s presence on the panel that will hear oral arguments in Texas v. United States on Friday is simply a disaster for the DAPA and expanded DACA programs. Smith, the self-described former right-wing activist, once described feminists as a “gaggle of outcasts, misfits and rejects.” He is one of five judges on the Fifth Circuit who once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial. In a case involving an obscure provision of the Affordable Care Act, Smith badgered a Justice Department attorney and ordered the department to produce a letter explaining whether they agreed with an inartful statement by President Obama.

Smith’s conservatism is tribal and, at times, belligerent. It would be very surprising if he cast a vote in favor of politically controversial programs spearheaded by Barack Obama.

He is joined on the panel by Judge Jennifer Elrod. Elrod is a George W. Bush appointee, while Smith is a Reagan appointee, so her record is not as thick as Judge Smith’s. Nevertheless, in her eight years on the bench she has generally behaved as a loyal conservative….

Elrod’s record on immigration suggests that she will take a similarly conservative approach. In Villas at Parkside Partners v. City of Farmers Branch, the full Fifth Circuit voted 9-5 to strike down a local ordinance that effectively made it a crime for undocumented immigrants to rent a home. Elrod dissented from this decision, claiming, somewhat improbably, that the ordinance “does not constitute a regulation of immigration.”

The third judge is an Obama appointee, but will likely be outnumbered. If this transpires as expected, then the administration will have to appeal to the full 5th Circuit, and if that fails, to SCOTUS. Unless the full 5th Circuit or SCOTUS intervenes to give the affected immigrants relief pending the appeals, Hanen’s order against implementation of Obama’s executive actions will remain in force. That the ultimate disposition of the case looks a lot more positive for the administration is cold comfort for those needing help right now.

Should Judge Hanen’s order remain in place, this matter will proceed to a trial on the merits in his court with a decision that has been telegraphed by Judge Hanen, and then this case will wend its way back through the 5th Circuit Court of Appeals to the U.S. Supreme Court, maybe some time next year.

6 responses to “(Update) 5th Circuit to hear immigration orders appeal on April 17

  1. If the supreme court rules against President Obama for white liberals their is no higher court ;but the minority communities have a higher court they can appeal to. THE STREET! The immigrant community and their supporters in 2006 put 1,000,000 people in the streets of los angeles 500,000 in chicago new york dallas. 100,000 in phoenix and 100,000’s in other cities and all on the same day! As the rolling stones sing “The time is right for fighting in the streets!” And the street fight should start at every republican presidential campaign stop and blockade fox news in new york and every fox station they can. And if they are very unlucky they will create a martyr or martyrs. I have written a screenplay about how to go about this. I wish some of you read it and give me your feed back. I have thanked steve for doing so. website: thealamoisavenged.com

  2. Fancy tap dancing!! When a decision is in line with what you believe, it is wise jurisprudence. But when it goes against what you believe, it was sheer luck because of biased judges and is likely to be overturned.

    This case will force the Supreme Court to decide the issue. I think it can go either way.

    • AZ BlueMeanie

      It’s always hilarious when someone with absolutely no experience in this field expresses a legal opinion about that which he knows nothing about, based upon feelings.

      • What I posted has nothing to do with legal expertise…it is just based on reading what you write. Given your constant refrain that I have no legal training (which I freely admit), it makes me curious: What legal training have you had? I get the impression that you have such training, but I would appreciate your sharing that information.

        • So, Steve, how do we help people to afford healthcare?

          • I realize you are asking that in a sarcastic manner, but I will answer it as if you were being genuine. I honestly don’t know how to provide affordable health care for all Americans. It is a complex subject and I depend on experts and professionals to lay the ground work for a good system, devoid of politics. I had great hopes that when the Affordable Care Act was passed that it would live up to the sales pitch. I was in favor of it because the experts said it would provide affordable health care for all Americans. Even when it initially failed to live up to the hype, I attributed it to start up confusion and hoped things would even out as it started working.

            In my business I had always provided a good health care plan for my employees, with my business and the employee splitting the cost. I was hopeful that the ACA would allow them to go out and find a plan more tailored to their individual needs, with us again splitting the cost. Unfortunately, only 3 out of 200+ employees were able to do that because the plans offered through ACA were too expensive.

            I still have hope that the ACA can be worked out to provide affordable health care for all Americans, but I don’t have the same confidence I once had. In the meantime, I hear horror stories about the cost for health insurance being outrageous. I read that on this very blog. I really want affordable healthcare for all Americans. It is not right that this Nation is not able to provide it. I don’t know what it will take, but it should be a national priority/goal.