- The Obama administration is taking its fight over the president’s executive actions on immigration to the Fifth Circuit Court of Appeals, on the second level of the federal court system.
- The administration asked on March 12 for an “emergency” stay of the ruling made by federal judge Andrew Hanen in February. The stay would allow the federal government to resume implemening the president’s executive actions on immigration while a lawsuit against them works its way through the courts.
- The government initially asked Judge Hanen himself to consider a stay, but Hanen said he wouldn’t think about it until he’d resolved another question in the lawsuit. So the government has skipped up to the next court level.
- The 5th Circuit is one of the country’s most conservative appeals courts, making it more likely that they might decide to keep the president’s new “deferred action” programs from going into effect.
- If that happens, the Obama administration would be expected to appeal to the Supreme Court.
- Ultimately, if the administration wins a stay, the deferred-action programs could start back up in only a few weeks.
- If the Supreme Court sides with the states, the programs will be frozen for a matter of months or years while the case makes its way through the courts at the usual pace.
The Obama administration just kicked its immigration lawsuit up to the next level
What is the ruling that’s actually being considered here?
The ruling the administration is asking the Fifth Circuit to “stay” is the one Judge Andrew Hanen issued in February. It’s a temporary injunction — that means it’s not a final ruling on whether or not Obama’s immigration actions are unconsitutional or illegal, but it prevents them from going into effect while the courts consider those questions.
Technically, the Fifth Circuit isn’t reviewing whether or not the injunction itself was appropriate. They’ll be looking at whether it would be appropriate to let it go into effect, or not — essentially, whether to put an injunction on the injunction.
What is the Obama administration asking the appeals court to do?
The administration’s presented the court with a few options that they think would be better than letting Judge Hanen’s injunction stand:
- Restart the relief programs entirely. This would allow the government to restart the deferred-action programs in all 50 states — it would basically return the government to where it was before Judge Hanen’s ruling.
- Restart the relief programs everywhere but Texas. Judge Hanen’s ruling was actually quite narrow — it only agreed for sure that Texas had a solid case against the federal government, but said that was enough to keep the programs from going forward. The government argues that if states that aren’t Texas haven’t established that they’ll be hurt, immigrants in those states shouldn’t be prevented from getting relief.
- Restart the relief programs in every state that isn’t suing to stop them. 26 states have joined the lawsuit against the federal government, but the other 24 aren’t claiming that the deportation relief programs hurt them. In fact, one group of states that supports the Obama administration program is asking the courts if they can be let out of the injunction. The Obama administration goes further, and asks that every state that isn’t actively suing the president get let out of the injunction.
What are the programs that the ruling put on hold?
As a result of Judge Hanen’s ruling, the federal government had to stop both of its new efforts to grant deferred action (temporary protection from deportation) and work permits to unauthorized immigrants. It had planned to start accepting deferred-action applications from unauthorized immigrants who are older than 30, but who came to the US when they were children or teenagers, on February 18th. It isn’t doing that.
Nor can it put out and start accepting applications for deferred action from unauthorized immigrants whose children are US citizens or permanent residents, as it was planning to do later this spring.
However, immigrants who are currently under 30, and who came to the US as children are teenagers, are still able to apply for deferred action. That’s because the lawsuit isn’t challenging the original Deferred Action for Childhood Arrivals program that was implemented in 2012. It’s just challenging the expansion of that program and the separate program for parents, both announced in 2014.
Why did the federal judge stop those programs from going into effect?
The primary reason that Judge Hanen halted the executive actions was that he found that the administration hadn’t properly followed the Administrative Procedures Act — which sets the typical procedure for making federal regulations. According to Cecilia Wang, Director of the Immigrant Rights Project for the ACLU, Hanen’s ruling says that “if (the government) wanted to do these things, it should have provided notice in the Federal Register, with period for comment.” But because the Obama administration didn’t do that for these actions, the ruling says, it violated the law. (The other half of Judge Hanen’s ruling, saying that the states were allowed to sue the federal government to begin with, was also really narrow.)
So even if this goes to the Supreme Court soon, it won’t be deciding whether the executive actions were constitutional or not?
Right. And again, they wouldn’t even be ruling on the logic in Judge Hanen’s opinion. They’d be deciding whether it would be appropriate to let the injunction stay in effect, or whether to pause it, through the next phase of the legal battle.
For more on the lawsuit against Obama's immigration actions, see our explainer on Judge Hanen's decision from February.
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