March 24, 2015
A federal appeals court announced Tuesday that it will hold an unusual oral argument session next month on the question of whether to stay a judge’s order blocking President Barack Obama from carrying out new immigration executive actions he put forward last year.
The 5th Circuit U.S. Court of Appeals said it will hold two hours of oral argument in New Orleans on April 17. The session is aimed not at the legal merits of the ruling U.S. District Court Judge Andrew Hanen issued last month, but on whether to grant the federal government’s motion to put that order on hold while the appeal of his decision goes forward.
Legal experts described as extraordinary the appeals court’s decision to hold a public session focusing on a stay.
“That’s extremely rare,” said University of Richmond Law Professor Carl Tobias. “Those are almost always addressed just on the papers and very quickly….I guess they just see this as such a huge issue beteen states and administration they’re giving it full-dress treatment.”
The appeals court also granted the federal government’s motion for an expedited appeal in the case that pits the administration against 26 states challenging the legality of Obama’s immigration actions. The 5th Circuit set a briefing schedule for the so-called merits appeal that runs through mid-May, pointing to possible oral arguments on that question later that month or in June.
“The rule of law is at the very heart of our case against President Obama’s lawless immigration action,” Texas Attorney General Ken Paxton said in a statement responding to the court’s announcement. “We are a nation of laws, and we are proud to lead a bipartisan coalition of 26 states fighting this Administration’s unilateral and unconstitutional use of executive power. We will vigorously oppose the president’s illegal amnesty plan in court.”
A Justice Department spokeswoman declined to comment on the order.
Both sides in the litigation have been embroiled in a continuing dispute before Hanen about whether the Obama Administration clearly disclosed that after Obama announced the new immigration moves in November one aspect of them began to be carried out almost immediately: the issuance of three-year “deferred action” or “DACA” grants and work permits to illegal immigrants who entered the U.S. as children.
In his February order, Hanen ordered a stop to plans to expand that “childhood arrivals” program and to create a new program for illegal immigrant parents of U.S. citizens and green card holders. However, by the time Hanen issued his injunction, the Department of Homeland Security had already granted more than 100,000 three-year permits, mostly to people who applied before Obama announced his moves in November.
The Justice Department did present some evidence about the three-year grants, but federal government lawyers have apologized for other statements they said may have caused confusion. After a testy hearing last week, Hanen is now considering what to do about that issue.
The 5th Circuit order (posted here) makes clear they aren’t diving into that dispute, at least not yet. “Nothing in this order is intended to affect or constitute a comment on any ongoing proceedings in the district court,” the appeals court order said.
The 5th Circuit is viewed as America’s most conservative federal appeals court, with a ratio of 2 Republicans to every Democrat on the active bench. Tuesday’s order did not disclose which judges will consider the stay issue or the appeal on the merits.
UPDATE (Tuesday, 8:48 P.M.): This post has been updated with the Justice Department declining to comment.