NOTE: This post was updated on November 10, 2015 to include the result of the Fifth Circuit’s review of the injunction.
On November 9, 2015, the Fifth Circuit Court of Appeals in New Orleans released its decision upholding the injunction against some of President Barack Obama’s immigration executive actions from November 20, 2014. The following primer explains the current status of this important immigration case in basic terms.
On November 20, 2014, President Obama announced a series of executive actions on immigration. Among these actions were programs that would grant certain unauthorized immigrants “deferred action,” which would protect them from deportation and allow them to work. One program—the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—would grant deferred action to qualifying parents of U.S. Citizens or Legal Permanent Residents (LPR). A second action would have expanded the existing Deferred Action for Childhood Arrivals (DACA) program that began in 2012 for individuals brought to the United States illegally as children (so-called “DREAMers”). DAPA was scheduled to begin in May 2015 and the expanded DACA program was scheduled to begin in February 2015.
In December 2014, a group of states (now at 26) led by Texas sued the federal government to stop implementation of the two deferred action programs. The states argued that the programs would impose costs on the states, that the president lacked the legal authority to create them, and that the public did not have appropriate notice or opportunities for comment. The administration opposed the suit, arguing that the executive branch has the authority to prioritize or de-prioritize individuals for removal under prosecutorial discretion. Before the administration was to begin implementing these new programs, the states asked for a preliminary injunction (a court order stopping the administration from proceeding with the actions in dispute) while the court decided the legality of the programs.
A federal judge in the Southern District of Texas issued the preliminary injunction in February 2015. In issuing the injunction, the judge primarily agreed with the states’ argument that the administration did not undertake proper notice and comment proceeding in taking the actions.
The government appealed to the Fifth Circuit Court of Appeals in New Orleans and asked for an emergency stay (or temporary hold) on the district judge’s injunction until the appeals court could decide whether or not the injunction should permanently stay in place or be lifted. On May 27, 2015, two of the three judges on the Fifth Circuit panel denied the emergency stay request and allowed the injunction to remain in effect. In their ruling, the judges stated that they believed that the states had demonstrated that they would suffer harm that could not be easily undone if the government were allowed to proceed with the programs now, but later lost its case. They also stated their initial belief that the government was not likely to win the appeal of the injunction.
On November 9, 2015, a different panel of the Fifth Circuit denied the government’s appeal of the injunction, leaving it in place. In a 3-2 decision, the panel reiterated the finding of the preliminary ruling denying the emergency stay, holding that the states did have standing to sue the federal government because they would suffer harm from the actions and that they believed the states would be likely to win the underlying case against the government that caused the injunction in the first place.
These preliminary rulings are the prelude to the main attraction: the underlying lawsuit, which asserts that the executive actions were not within the president’s authority and would harm the states. That case has not yet been decided by the district court, but parts of the assertions were commented on by the Fifth Circuit’s decision on the appeal.
The Department of Justice indicated on November 10, 2015, that it would appeal the Fifth Circuit decision to the U.S. Supreme Court. The timing of the appeal will determine whether or not the court, if it decides to take the case, will rule on it before the end of its current term (June 2016). The government has 90 days to file its petition to the Supreme Court to take the case on appeal, but it could require many months of additional briefs before the justices decide whether or not to take the case. If the court does not receive all briefings by mid-January 2016, it is unlikely that the case will be heard this term. The next opportunity would be the fall term, beginning in October 2016.
Meanwhile, the district court judge can proceed with the underlying case originally filed by the states. The last hearing in the case was in August 2015 to discuss government conduct in issuing some DACA permits, which allegedly violated the injunction. The judge has not yet set a hearing date on the merits of the case, possibly waiting to see what happens with the other appeals.
The Obama administration’s loss in the circuit court so far does not necessarily mean that it will ultimately lose the case. Neither the district court nor the appeals court has ruled on the actual constitutionality of the president’s executive actions. Both of the Fifth Circuit’s decisions—denying the government’s request for a stay of the injunction and upholding the injunction itself—were split decisions, 2 to 1, by the three-judge panels. In both cases, the dissenting judge’s opinion strongly supported the administration’s arguments. It is unclear whether the Supreme Court will accept the case. Generally, the court looks at cases where there has been a difference of opinions among the various circuits, or where there are significant new areas of law at stake. However, given that the underlying case here has constitutional questions of executive authority, and given the administration’s determination to see its actions upheld, there will be pressure on the court to hear the case.
Meanwhile, DAPA and the DACA expansion will remain on hold until the appeals of that decision are concluded, which could take well into 2016. However, because the court case only involves the new DAPA program and the expansion of the 2012 DACA program, the original 2012 DACA program remains in effect. In addition, the administration is continuing to implement the president’s other November 2014 executive actions on immigration, including removal priorities, changes to how some legal visa categories are managed, and new border security strategies that are in place or are being implemented. However, the delay in the implementation of DAPA and the expanded DACA programs, and their legal uncertainty, may mean fewer applicants if the programs are eventually allowed to go forward. The administration and various advocacy groups are hoping that the program will be implemented before President Obama leaves office, since a new president, if so inclined, could choose not to implement them. Further, if many people have gained relief under the programs, a new president may find it more difficult to terminate the programs.
In the meantime, Congress seems content to allow the case to play out in court for now, after making legislative attempts earlier this year to stop the president’s executive actions. In short, the new programs remain at a standstill at the moment, and the final outcome may not be known until close to or following the presidential election in 2016.