32 Days and Counting

Today is the day a key component of President Obama’s executive action on immigration was supposed to go into effect.  But that’s not happening. The President’s entire executive action remains halted due to the decision of one federal district court judge in Texas. That judge’s decision was wrong and should be reversed.  Equally wrong is the delay by the United States Court of Appeals for the Fifth Circuit in deciding whether the President’s action should be allowed to go into effect while that court reviews the district court’s decision.            

President Obama’s executive action would have, among other things, allowed certain parents of U.S. citizens and lawful residents to request deferred deportation, and the district court decision temporarily halting that action was announced back in February.  When a district court makes a big decision like that, it (or a higher court) will often “stay” its decision—essentially putting it on hold while a panel of higher court judges reviews it to make sure the district court judge got it right.  In this case, the district court judge refused to stay his ruling, so the government asked the Fifth Circuit to stay it.  In an unusual move, the Fifth Circuit agreed to hold oral argument on this request, and court watchers expected to get a decision from the Fifth Circuit very soon thereafter.  Well, it’s now been over a month since oral argument, and we’re still waiting.

This delay is a big problem for two reasons.  First, it’s leaving in place a district court decision that is fundamentally wrong.  The district court temporarily blocked the President’s executive action on the ground that the Administration had failed to follow what’s called “notice-and-comment procedures” in announcing the executive action.  The judge concluded that these procedures were required because the President’s executive action amounts to “in effect, a new law.”  This is simply incorrect.   When President Obama and the agencies under him announced this executive action, they weren’t making a new law; they were simply providing guidance on how the laws that Congress has already passed should be applied in light of the nation’s enforcement priorities and available resources.  Exercising this kind of discretion is something Presidents do all the time in all kinds of contexts, and it’s particularly important in the context of immigration, given that there are roughly 11.3 million undocumented immigrants in this country, and Congress has only provided enough money to remove about 400,000 per year.  Indeed, Congress has repeatedly conferred specific authority on the President to exercise discretion in enforcing the nation’s immigration laws. 

Second, even if the Fifth Circuit were not inclined to grant the government’s request for a stay (which would be wrong, but seems likely given this delay), its failure to go ahead and announce its decision effectively forestalls Supreme Court review.  After all, if the Fifth Circuit denies the government’s request for a stay, that’s not the end of the road; the government can still go to the Supreme Court and ask it to stay the district court’s decision.  This would hardly be the first time the Supreme Court has stepped in to stay a lower court decision.  Consider just a few recent high-profile examples, such as the decisions last year to stay district court decisions blocking implementation of state voting laws in advance of the November elections, and to stay a district court decision blocking implementation of a state marriage ban pending final review by the governing court of appeals.  If the Supreme Court did the same thing in this case, President Obama’s execution action on immigration would finally be able to go into effect while the courts continue to address the legal issues raised by the action’s challengers. 

So there’s a great deal at stake in the Fifth Circuit’s failure to act on the government’s request to stay the district court’s decision.  It’s now been 32 days since it heard oral argument on that request.  The nation should not have to wait any longer.  


Photo: David Saddler

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