The United States Court of Appeals for the Fifth Circuit is a severely conservative court. Among other things, a panel of the Fifth Circuit once suggested that undocumented immigrants are not entitled to the Fourth Amendment’s protections against illegal searches and seizures. So the fact that a challenge to President Obama’s recently announced programs that could offer relief to nearly 5 million undocumented immigrants is now pending before the Fifth Circuit was always likely to bring bad news for those immigrants.
Nevertheless, the millions of immigrants who planned to seek relief under the administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, and under an expansion of the existing Deferred Action for Childhood Arrivals (DACA) program received terrible news on Monday. Two members of the three-judge panel that will decide whether to reinstate these programs are extraordinarily conservative judges. One of them once described himself, admittedly somewhat jokingly, as a former “right-wing activist.”
Judge Jerry E. Smith’s presence on the panel that will hear oral arguments in Texas v. United States on Friday is simply a disaster for the DAPA and expanded DACA programs. Smith, the self-described former right-wing activist, once described feminists as a “gaggle of outcasts, misfits and rejects.” He is one of five judges on the Fifth Circuit who once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial. In a case involving an obscure provision of the Affordable Care Act, Smith badgered a Justice Department attorney and ordered the department to produce a letter explaining whether they agreed with an inartful statement by President Obama.
Smith’s conservatism is tribal and, at times, belligerent. It would be very surprising if he cast a vote in favor of politically controversial programs spearheaded by Barack Obama.
He is joined on the panel by Judge Jennifer Elrod. Elrod is a George W. Bush appointee, while Smith is a Reagan appointee, so her record is not as thick as Judge Smith’s. Nevertheless, in her eight years on the bench she has generally behaved as a loyal conservative. Judge Elrod is perhaps best known for her decisions reading what remains of Roe v. Wade narrowly to permit Texas to enact strict restrictions on abortion. Indeed, in a decision last October, Elrod practically begged the Supreme Court to hear a challenge to the Texas abortion law, most likely because she believed that the justices would affirm her decision reading abortion rights narrowly. The tactic backfired, at least temporarily, as the Supreme Court blocked the law while the full merits of the case was still pending before the Fifth Circuit.
Elrod’s record on immigration suggests that she will take a similarly conservative approach. In Villas at Parkside Partners v. City of Farmers Branch, the full Fifth Circuit voted 9-5 to strike down a local ordinance that effectively made it a crime for undocumented immigrants to rent a home. Elrod dissented from this decision, claiming, somewhat improbably, that the ordinance “does not constitute a regulation of immigration.”
Judges Smith and Elrod will be joined by Judge Stephen Higginson, an Obama appointee who is likely to dissent from Smith and Elrod’s decision.
Thus far, DAPA and expanded DACA have had a rough ride in federal court, largely because the case was assigned to a federal district judge with a long history of opposition to immigrant-friendly policies. The fact that Smith and Elrod will hear the case seeking to reinstate DAPA and expanded DACA suggests that this rough ride will continue — at least until the case reaches the Supreme Court.