Some ‘inside baseball’ on the Fifth Circuit Court of Appeals immigration executive orders case

Ian Milhiser at Think Progress provides some “inside baseball” legal analysis that lawyers love, but the general public frequently does not understand, nor appreciates. The Fifth Circuit Court of Appeals will take up the merits case of President Obama’s executive orders on immigration on July 6. It’s always a dangerous thing to try to read tea leaves from orders, but Milhiser finds reason for optimism in the Court’s order last week. Federal Court Offers Ray Of Hope To Obama’s Immigration Programs:

[O]n Thursday, the Fifth Circuit sent a letter to attorneys in this case asking for briefing “addressing pertinent portions of the majority and dissenting opinions issued by” the panel that included Judges Jerry Smith and Jennifer Elrod. Significantly, however, the letter also advised the attorneys to be “mindful of the relationship between motions panels and merits panels as stated in” the court’s 1997 decision in Mattern v. Eastman Kodak Co.. That decision held that “a panel hearing the merits of an appeal may review a motions panel ruling, and overturn it where necessary,” and that “the merits panel must be especially vigilant where, as here, the issue is one of jurisdiction.”

So, to translate this somewhat arcane mix of legalize, the panel that will consider Judge Andrew Hanen’s order in July is not bound by Smith and Elrod’s decision refusing to stay Hanen’s order. Indeed, this new panel even has the power to “overturn” Smith and Elrod’s decision.

That’s very good news for the the families hoping to benefit from Obama’s new policies, because Judge Smith’s opinion on behalf of himself and Judge Elrod could be simply devastating to the Obama administration’s legal arguments if it were binding on future panels, largely because it calls upon the appeals court to give an extraordinary degree of deference to Judge Hanen’s conclusions.

Judge Hanen has not hidden his hostility towards the administration’s immigration policies. In December, he accused the federal government of engaging in a “dangerous course of action” because it allowed an undocumented mother to be united with her child without having criminal charges brought against her. Hanen’s engaged in atypical tactics which may have been an effort to intentionally prevent a higher court from reviewing his decisions. He’s also threatened to sanction Justice Department attorneys because they did not immediately disclose information that, most likely, was not even relevant to any matter that Hanen had jurisdiction over at that stage in the litigation.

Additionally, Hanen’s also made assertions about the administration’s immigration policies that contradict the conclusions of a recent Fifth Circuit decision. Among other things, Hanen claims that many of the administration’s official documents laying out how its immigration policies are supposed to function are essentially lying about how the programs actually function. Several months after Hanen reached this conclusion, the Fifth Circuit handed down a decision that does not embrace Hanen’s assertion that the administration is engaged in some kind of grand act of deception.

Judges Smith and Elrod, however, did not follow the guidance of this recent Fifth Circuit decision. Instead, they held that the Justice Department must overcome an extraordinarily high burden if they wish to displace any of Hanen’s conclusions about how the administration’s immigration programs actually operate. That’s a toxic decision for the administration, because it gives a trial judge who has already revealed himself to be hostile to the administration’s entire enterprise the power to reach dubious conclusions, and it instructs appellate judges to be highly deferential to these conclusions.

Now that the Fifth Circuit has indicated that it does not view Smith and Elrod’s decision as binding, however, the Justice Department has another opportunity to challenge Hanen’s most damaging findings. That doesn’t meant that they will ultimately win this lawsuit — we will not know which three judges will sit on the July panel until a week before oral arguments in that case — but it does mean that the administration has a shot at victory that they likely would not have if Smith and Elrod’s conclusions were binding.

Oral arguments begin on July 6. Stay tuned.