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.
Last month, Judge Andrew Hanen, a Republican with a history of hostility towards the Obama administration’s immigration policies, issued an order single-handedly halting changes President Obama announced last November that would allow approximately 4.9 million undocumented immigrants to temporarily live openly in the United States. Since then, Hanen has delayed ruling on a Justice Department motion asking him to stay this decision, delays that make it difficult for DOJ to seek a stay from a higher court.
On Thursday, the Justice Department filed a motion asking the United States Courts of Appeals for the Fifth Circuit to bypass Hanen and grant such a stay anyway. Such motions seeking to bypass a federal trial judge are not usually granted, although judges also typically do not sit on stay requests in the way Hanen has delayed deciding DOJ’s request.
If DOJ has not enjoyed the dismissive treatment they’ve experienced in Judge Hanen’s courtroom, however, they may find that the Fifth Circuit is no more hospitable. Ten of the Fifth Circuit’s judges are Republican appointees, while only five were appointed by Democratic presidents. A panel of the Fifth Circuit once suggested that undocumented immigrants are not entitled to the Fourth Amendment’s protections against unlawful searches and seizures. Five of its judges once voted to allow a man to be executed despite the fact that his lawyer slept through much of his trial. The court once ordered a high school cheerleader to pay sanctions after she sued the school district that told her to cheer for her alleged rapist.
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.
DAPA and DACA both provide transparency to immigrants who are not priorities for enforcement, such as law-abiding parents of United States citizens or college-educated immigrants who came to the United States as children — the DAPA and DACA programs declare openly that these immigrants will not be subject to enforcement so long as they benefit from the programs. Meanwhile, other undocumented immigrants, such as violent criminals, are prioritized for deportation.
In 2012, in a decision handed down shortly after President Obama announced the DACA program, the Supreme Court strongly suggested that these programs are legal. “A principle feature” of the deportations process, the Court explained in Arizona v. United States, “is the broad discretion exercised by immigration officials.” When confronted with an immigrant who is eligible for deportation, “[f]ederal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
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.