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The Department of Justice has now called on the 5th Circuit Court of Appeals to lift a Texas judge’s injunction on Obama’s executive actions on deportations, which had put those actions on hold and left millions in limbo. This significantly ratchets up the legal battle over one of the most controversial and contested initiatives of Obama’s second term.
The request, which you can read right here, is notable for the quick timetable it urges: It asks the court to act on the demand to lift the injunction within 14 days. This raises the possibility that the measures could, in fact, continue to go forward quite soon — while the underlying legal battle over them awaits resolution.
It’s hard to predict what will come next. The 5th Circuit is a conservative court; a lot will depend on which judges hear the appeal. But at the very least, immigration advocates who were worried that the administration wasn’t prepared to fight the Texas ruling aggressively enough will now be pleased with what they’re seeing.
The Justice Department, and the nearly 5 million immigrants whose fate rests upon whether it can ward off a legal challenge to President Obama’s newest immigration policies, may have leaped out of the frying pan and into the fire on Thursday. After waiting fruitlessly for a Republican judge to give them an answer one way or another on a request to stay one of his previous decisions, the Justice Department asked the United States Court of Appeals for the Fifth Circuit to bypass that judge and issue the stay themselves. The Fifth Circuit, however, is one of the most conservative federal appeals courts in the country. So the Justice Department may have simply traded one set of problems for another.
Hanen’s original order halted the Deferred Action for Parental Accountability (DAPA) program, as well as an expansion of the Deferred Action for Childhood Arrivals (DACA) which already allows many young undocumented immigrants to remain in the country. Both of these programs are, effectively, non-enforcement programs. As the Justice Department explained in a memorandum, “there are approximately 11.3 million undocumented aliens in the country,” but the federal government only “has the resources to remove fewer than 400,000 such aliens each year.” Thus, the federal government necessarily must make decisions about how it will target its limited immigration enforcement resources.
Though Hanen’s February order is riddled with language denying that the executive branch’s “broad discretion” over immigration matters extends to programs like DAPA, he ultimately claims that he is “not addressing” any substantive attacks on DAPA or expanded DACA. Instead, he ordered the programs halted on the narrow grounds that the Obama administration neglected to jump through some burdensome-but-surmountable procedural hoops before it implemented the programs. DOJ claims in its motion to the Fifth Circuit that this narrow holding is erroneous, arguing that, under the Supreme Court’s precedents “an agency’s decision not to undertake enforcement action involves discretionary judgments regarding resource allocation and other factors that are not amenable to judicial oversight and is presumptively unreviewable” under the relevant federal law.
Whatever the strength of DOJ’s arguments, however, they first must get those arguments to a judge who is open to them. The advantage of seeking relief from the Fifth Circuit is that its judges do not include Andrew Hanen. But that does not mean that the Justice Department will not draw a panel of judges who share Hanen’s strong views about immigration.