Several Paths Available For Administration In Exec. Amnesty Fight

Pat Sullivan/Associated Press

Following a major legal blow to President Obama’s executive amnesty programs, the administration has yet to reveal its next course of action but there are several it could take.

Tuesday, a three-judge panel on the 5th Circuit Court of Appeals voted 2-1 to deny the Obama administration’s request for an emergency stay of U.S. District Court Judge Andrew Hanen’s injunction to allow Obama’s executive amnesty programs go forward — the expansion of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

In February, Hanen issued a preliminary injunction blocking DACA and DAPA from taking effect, ruling in favor of 26 states — led by the state of Texas — challenging the Obama’s executive amnesty programs. When Hanen refused to lift the injunction, the Justice Department appealed to the 5th Circuit and called for an emergency stay of the decision.

As the Heritage Foundation’s senior legal fellow Hans von Spakovsky explained to Breitbart News, “The appeals court yesterday issued an order denying the government’s motion and holding that the injunction will stay in place while the appeal is pending.  So now the appeals court will schedule a second round of oral arguments to hear from both sides on the substantive merit of the injunction, and it will then issue a final decision on whether the injunction was properly issued.”

While there is still more legal legwork to be done at the lower court level, immigration activists are already calling on the administration to take the matter to the Supreme Court as soon as possible.

“Immigrant communities have waited long enough. Today’s decision allows the lower court’s legally unsound decision blocking immigration relief to stay in place, and our economy and families will suffer the consequences,” Marielena Hincapié, the executive director of the National Immigration Law Center said in a statement. “We call upon the Justice Department to continue its efforts to get this injunction lifted by bringing the matter before the Supreme Court without delay.”

Seeing the case brought to the Supreme Court is a real outcome, however there are currently avenues currently before the government.

“The Obama Administration now has three appeal options from yesterday’s decision: request the panel of judges to rehear the matter, request for an en banc review of the matter, or file an application to stay the order to Justice Scalia at the U.S. Supreme Court. An appeal of the preliminary injunction itself will be heard by the Fifth Circuit Court of Appeals on July 6th,” Jay Sekulow, chief counsel of the American Center for Law and Justice (ACLJ), explained to Breitbart News.

ACLJ has been involved in the case as an advocate for the states’ position, representing lawmakers’ in amicus briefs to the courts.

He noted that this most recent activity is only the first in a two issue ordeal, with the second aspect still residing in federal district court.

“Second, the lawsuit by 26 states challenging the constitutionality of the President’s action is proceeding in the federal district court where the case will be tried.  Once a decision is reached at the district court level, an appeal is likely to the appeals court and ultimately to the U.S. Supreme Court,” Sekulow added.

Heritage’s Spakovsky noted that however the panel of judges rules in the July appeal of the preliminary injunction itself, either side will again be able to request an en banc review — or requesting the full 5th Circuit consider the case — or appeal to the Supreme Court.

Of predictions on what the Justice Department would do, Spakovsky emailed he was not sure but speculated that the government may wait for the injunction appeal ruling.

“I suspect they will wait to see how the three-judge panel rules on the substantive merits of the injunction and then ask for an en banc review, hoping that Obama’s recent appointments to the 5th Circuit can swing the case their way,” he explained

On the other hand, speaking to CNN, Elizabeth Wydra, from the Constitutional Accountability Center — which supports the executive actions — predicted that the administration would go directly to the Supreme Court.

“Given the strong public interest in getting DAPA off the ground as soon as possible, the administration will almost certainly go straight to the Supreme Court,” she said. “It will file this request with Justice (Antonin) Scalia, the justice assigned to the Fifth Circuit, but he will very likely refer the matter to the entire Court for all of the justices to consider.”

The Justice Department did not respond to Breitbart News’ requests for comment by publishing time. According to reports the administration is still looking at the ruling and weighing their options.

Texas Attorney General Ken Paxton meanwhile called the appeals court’s denial of an emergency stay a “a victory for those committed to preserving the rule of law in America.”

“Telling illegal aliens that they are now lawfully present in this country, and awarding them valuable government benefits, is a drastic change in immigration policy. The president’s attempt to do this by himself, without a law passed by Congress and without any input from the states, is a remarkable violation of the U.S Constitution and laws. We will continue to fight the brazen lawlessness that has become a trademark of the Obama Administration,” Paxton said.

Joining Texas in the legal battle against the administration’s executive amnesty are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin.


In a statement to The New York Times the Justice Department said it would not be seeking a stay from the Supreme Court.

“The department believes the best way to achieve this goal is to focus on the ongoing appeal on the merits of the preliminary injunction itself,” Patrick Rodenbush, a Justice Department spokesman told The Times. “Although the department continues to disagree with the Fifth Circuit’s refusal to stay the district court’s preliminary injunction, the department has determined that it will not seek a stay from the Supreme Court.”