Breaking News: Fifth Circuit Refuses to Stay the Injunction Barring Implementation of President Obama's Expanded Deferred Action Program


The CrImmigration blog has posted the U.S. Court of Appeals for the Fifth Circuit decision in Texas v. United States denying the Obama administration's request for a stay of the district court's preliminary injunction barring implementation of the expanded deferred action program announced in November 2014.  Judge Jerry Smith wrote the opinion for the court and was joined by Judge Jennifer ElrodJudge Stephen Higginson, an Obama appointee and former law professor, dissented.

The majority summarized its ruling as follows:  "[b]ecause the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction."  It found that the U.S. government had not made a strong showing that it is likely to succeed on the merits of its claim that the states lack standing.  The court concluded that the costs of issuing driver's license by the state of Texas under the expanded deferred action program was likely sufficient to confer standing on Texas.  The court further found that the U.S. government failed to establish a strong likelihood of success on plaintiffs' claim under the Administrative Procedure Act.  Last but not least, the court rejected the U.S. government's argument that the injunction be limited to the state of Texas:

"The government maintains that the nationwide scope of the injunction is an abuse of discretion, so it asks that the injunction be confined to Texas or the plaintiff states. But partial implementation of DAPA would undermine the constitutional imperative of `a uniform Rule of Naturalization' and Congress’s instruction that `the immigration laws of the United States should be enforced vigorously and uniformly.'  A patchwork system would `detract[] from the ‘integrated scheme of regulation’ created by Congress.'  Further, there is a substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states."  (footnotes omitted).

Judge Higginson dissented, summarizing his views as follows:

"I would hold that the underlying issue presented to us—the order in which non-citizens without documentation must be removed from the United States—must be decided, presently is being decided, and always has been decided, by the federal political branches. . . . On the expedience of immigration measures, sensible things can be said on all sides, mindful that our country is an immigrant society itself. The political nature of this dispute is clear from the names on the briefs: hundreds of mayors, police chiefs, sheriffs, attorneys general, governors, and state legislators—not to mention 185 members of Congress, 15 states and the District of Columbia on the one hand, and 113 members of Congress and 26 states on the other. I would not affirm intervention and judicial fiat ordering what Congress has never mandated." (citation and footnote omitted) (emphasis added).

I agree with Lyle Denniston on SCOTUSBlog that this case is likely to end up in the Supreme Court.

UPDATE (May 29):  Yesterday, the Obama administration announced that it would not seek Supreme Court review of the request for a stay of the preliminary injunction putting the DAPA program on hold.  The administration will focus on defending the program on the merits and lifting the preliminary injunction in the Fifth Circuit.

This post originally appeared on Immigration Prof Blog. Reprinted with permission.

About The Author

Kevin R. Johnson

Kevin R. Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.

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