Time for the Fifth Circuit to rule

The Hill (Op-Ed)

By Brianne Gorod

October 21, 2015

Time for the Fifth Circuit to rule 

It’s been nearly a year since President Obama announced his major executive action on immigration, which would permit certain parents of U.S. citizens and other lawful residents to request deferred deportation.  It’s been almost five months since the program was supposed to go into effect.  There are an estimated 5.5 million people who would be affected by the program.  Yet there’s been no resolution for these families.  The president’s program remains stalled while questions about its legality work their way through the courts.  

And while there shouldn’t be any question about the legality of the president’s actions, it seems clear that it’s going to have to be the Supreme Court that ultimately says so.  But the Supreme Court can’t act until the U.S. Court of Appeals for the Fifth Circuit issues its decision in the case.  It’s long past time for that court to have ruled.   

Back in May, the Fifth Circuit, by a 2-1 vote, refused to put on hold a district judge’s decision temporarily halting the implementation of the President’s actions, which is often what happens when a lower court makes such a big decision.  As a result, the president’s executive actions have yet to go into effect.   

That Fifth Circuit ruling back in May wasn’t formally a decision on the merits, that is, a decision on whether the district court’s opinion concluding the program was likely unlawful was right, but the majority opinion discussed the merits of the case enough to suggest that it agreed with the district court.  So the writing seemed to be on the wall when the Fifth Circuit announced that the two judges who voted against the administration in May would be hearing the appeal on the merits in July.  And that July oral argument only seemed to confirm what most observers had already suspected: the Fifth Circuit will likely be issuing another 2-1 decision against the administration.

Yet more than three months later the country, not to mention all of the families that would be affected by the president’s executive action, are still waiting for that decision.  The delay is almost as inexplicable as it is problematic.  

It’s inexplicable because the court surely could have issued an opinion by now.  The Fifth Circuit has said it “attempts to reach a decision within 60 days after” oral argument, and in 2014, it met that goal, with the median time between oral argument and opinion in civil cases just 1.8 months.  To be sure, even if this case is more complicated than many the Fifth Circuit hears, there can be no doubt that two of the judges on the panel were very familiar with the issues in the case well before oral argument.  After all, they wrote the opinion that discussed them back in May.  And the Fifth Circuit has already recognized that the case is an important one that should be resolved as expeditiously as possible; that’s why it expedited the parties’ briefing in the case.

It’s problematic because the Supreme Court cannot take up this case until the Fifth Circuit rules.  And if the Fifth Circuit doesn’t issue its opinion soon, the Supreme Court might not be able to hear the case this Term.  That means it’s possible there would not be a decision from the Court until June of 2017, after the next President has been elected.  By that point, the entire case could be moot if the next president decides to pursue a different course of executive action.

And throughout that entire period, a district court decision will have been left in place, even though it is fundamentally wrong.   

When President Obama announced this executive action, he was simply doing what presidents of both parties do all the time in all kinds of contexts; he was providing guidance on how the laws that Congress has already passed should be applied in light of the nation’s enforcement priorities and available resources.  Exercising this kind of discretion is especially critical in the immigration context, given that there are roughly 11.3 million undocumented immigrants in this country, and Congress has only provided enough money to remove about 400,000 per year. 

The administration’s action was unquestionably lawful, but the families that should be benefitting from the president’s action are still waiting for answers from the nation’s legal system.  It’s time for the Fifth Circuit to rule.  These families may not get the answers they want from that court, but they should get it from the nation’s highest court.

For more information, go to:  www.beverlyhillsimmigrationlaw.com