5th Circuit Seeks More Information for Executive-Amnesty Injunction Appeal Case

June 5, 2015

Politico reports the 5th Circuit Court of Appeals ordered the Justice Department and a coalition of 26 states to comment on a three-judge panel’s ruling that temporarily affirmed an injunction blocking President Obama’s executive amnesties. Supplemental briefs addressing that panel’s majority and dissenting opinions in the emergency stay case are due on June 18. Another three-judge panel within the 5th Circuit will hear arguments in the separate injunction appeal case beginning on July 10.

In February Texas District Court Judge Andrew Hanen granted a request by governors and state attorneys general to enjoin the Administration from implementing the Deferred Action for Parental Accountability (DAPA) amnesty and an expanded Deferred Action for Childhood Arrivals (DACA) amnesty. DAPA and DACA would grant amnesty and work permits to millions of illegal aliens.

The Obama Administration sought an emergency stay of the injunction in the 5th Circuit. In a 2-1 ruling, Judges Jerry Smith and Jennifer Walker Elrod denied the stay motion, saying the Justice Department is unlikely to succeed on the merits of that appeal. Judge Stephen Higginson dissented.

In July another three-judge panel will consider an appeal of Judge Hanen’s injunction based on its merits. In preparation for that case, the 5th Circuit yesterday ordered comments from the Justice Department and plaintiffs on the emergency stay ruling. The court has not yet named judges for the case.

Politico reports that supporters of Obama’s executive amnesties think the wording in the yesterday’s order suggests the appeal panel will not consider itself limited by the ruling of the emergency stay panel.

Immigration attorney David Leopold told Politico, “I think that 5th Circuit precedent pretty much gives the judges who’ll hear the final appeal of the preliminary injunction the freedom to make whatever decision they deem appropriate, regardless of the motions panel’s refusal to lift Hanen’s order blocking the immigration executive actions. Here the motions panel said, in effect, that the government was unlikely to succeed on the merits of its appeal – but it didn’t in fact make any conclusion about the merits of the preliminary injunction—e.g. whether Hanen got it right or wrong. opinion might be highly persuasive to the panel that hears the final appeal in July, but strictly speaking I don’t think it binds the panel that will hear the full appeal.”