After another adverse court ruling, the Obama administration is racing against the clock to salvage the president’s sweeping executive actions on immigration.
The Department of Justice on Tuesday said it will ask the Supreme Court to review a lawsuit brought by Texas and 25 other states challenging President Obama’s executive actions on immigration, after a federal appeals court ruled against the actions Monday. The case has been tied up in the courts for nearly a year, keeping millions of undocumented immigrants in legal limbo as they await the fate of a program that would have granted them deportation relief and temporary legal status.
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Monday’s decision was not entirely unexpected. The 5th Circuit has earned a reputation as a notoriously conservative court. It had already ruled against the actions in the spring and ultimately barred the administration from moving forward with the programs while the case wound through the court. And in a fairly unique set of circumstances, the same two Republican-appointed judges served on both panels in the 5th Circuit that heard the case. That bench lineup — two conservative-leaning judges on a three-person panel — represented stiff odds for the administration.
Though administration officials have remained adamant that they will ultimately prevail before the Supreme Court, the strength of their legal arguments will not be the only issue — instead their greatest hurdle will be time.
The 5th Circuit panel had been sitting on the case since July. Meanwhile immigration advocates have kept a wary eye on the calendar in measuring the survival rate of the president’s executive order. The administration always knew that it would have to appeal the case to the Supreme Court. But it is critical for the Justice Department to bring the case before the high court in the next term — otherwise, it would be too late for the case to be heard while Obama remains in office.
“The timing of an argument and decision in this case will be in the hands of the court. There is no impediment that would prevent the court from hearing the case in April and deciding it by the end of June. But the court could decide to hear it but not until the next term,” said Walter Dellinger, former acting solicitor general. “The court has the complete authority over the timeline.”
But even in the best-case scenario for the administration — if the Supreme Court takes up the case in the upcoming term and rules in favor of Obama’s measures — the earliest possible date that officials could begin accepting applications would be in the waning days of Obama’s presidency, in the summer of 2016. That also happens to be smack in the middle of the general election swing, meaning the timing of the legal battle largely leaves the executive actions in the hands of the next Oval Office occupant. Each Democratic presidential candidate has pledged to not only carry on Obama’s torch on the immigration actions, but to go further by protecting the parents of undocumented immigrants who were brought to the United States when they were young. But on the Republican side, even the 2012 executive program that is already on the books, known as Deferred Action for Childhood Arrivals, or DACA, is on the chopping block. “I strongly disagree with the Fifth Circuit’s ruling in this politically motivated lawsuit against the President’s executive actions,” Democratic presidential frontrunner Hillary Clinton said in a statement on Tuesday. “The legal authority supporting the President’s actions is well established. I hope the case receives a fair and expeditious hearing before the Supreme Court, so that the millions who are affected can stop living in fear of their families being broken apart.” The added legal delays have had clear real-life implications on the millions of families that have been living in fear of deportation while the case crawls through the courts. “This is the moment that we, along with millions of families, have been waiting for. We have waited far to long already and we call on the Supreme Court to review this case without further delay,” said Marielena Hincapié, executive director of the National Immigration Law Center.
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