Earlier this year, U.S. District Judge Andrew Hanen ruled to block the expansion of Deferred Action for Parental Accountability (DAPA) and Deferred Action for Childhood Arrivals (DACA), both part of President Obama’s Executive Action on immigration. This ruling prevents the Administration from implementing the expansion of DAPA/DACA until the constitutionality of the programs is determined. A three-judge panel of the Fifth Circuit Court of Appeals heard oral arguments in April. Justice Department lawyers argued that Judge Hanen erred in February when he blocked the programs. The three judge panel was made up of two Republican appointees and one Obama appointee.
This week, the Court of Appeals denied the Federal Government’s motion for an emergency stay by two out of a three-judge panel. As a result, the injunction of the DACA/DAPA programs will remain in effect. This disappointing decision applies only to the request for an emergency stay, as the Federal Government’s general appeal will move forward in the Fifth Circuit. The Fifth Circuit is tentatively scheduled to hear oral arguments for the appeal July 6th and has yet to announce whether the same three-judge panel that voted against the emergency stay will preside over the Federal Government’s appeal.
There are three legal options the Federal Government may pursue following the Fifth Circuit’s ruling on the emergency stay. First, it can ask for “en banc” review by the Fifth Circuit, which means that the normal circuit of a three judge panel would increase to 15. Second, the government can appeal the stay denial to the Supreme Court. Finally, it can ask the Supreme Court to narrow the injunction so that it only applies to Texas or alternatively, to the states that are suing. It is unclear at this time what actions the Federal Government will take.