What is the Administration Thinking about its DAPA Appeal?!

February 18th, 2015

I am really, really confused. For the last month or so, based on my reading of the transcript, I was fairly convinced Judge Hanen would issue a preliminary injunction, putting DAPA on hold. I have to imagine the Justice Department reached a similar conclusion. Even more so, I have to imagine that DOJ recognized that a federal district court could put enjoin DAPA even before a suit was filed, based on procedural or substantive grounds. From my research on Obamacare, teams were assembled before the law was even passed to prepare litigation strategies. So what happened?!

Michael Shear and Adam Liptak have an insightful article in the Times, titled “White House Struggles on Immigration Ruling.” Why on earth are they struggling? How could they not have anticipated this would happen?

President Obama’s lawyers, facing what could be months of delay on the White House’s immigration efforts, are struggling for a response to a Texas judge’s ruling that has imperiled one of the president’s potential legacy achievements.

A top administration official said Wednesday it was unclear whether the Department of Justice would seek an emergency order that would allow the president’s immigration programs to go into effect while an appeal proceeds. A spokeswoman for the Justice Department said that no decision had been made on an emergency application to an appeals court, but she pledged to fight all challenges to the president’s actions.

The administration is dithering between an emergency stay and an appeal on an expedited basis.

It could ask the federal appeals court in New Orleans, the United States Court of Appeals for the Fifth Circuit, for a stay of Judge Hanen’s preliminary injunction. But that could be an uphill fight in a court dominated by Republican appointees.

A stay is ordinarily granted to preserve the status quo. Were the program to move forward, its benefits and protections might be hard to take back. Without his preliminary injunction, Judge Hanen wrote, “There will be no effective way of putting the toothpaste back in the tube.”

Any decision by the appeals court on a stay application would almost certainly be appealed to the Supreme Court.

But the administration may prefer to file an appeal rather than an emergency application, though perhaps on an expedited basis, in an effort to get the merits of the dispute to the Supreme Court as soon as possible.

If the administration files for an expedited appeal, followed by certiorari, it would effectively be impossible to resolve the issue before July. The case will be argued next term, with a decision as late as in June 2016. At that point, the administration is over. Why wouldn’t they go with the emergency stay?

More importantly, why was this decision not made weeks, if not months ago?

Could it be hubris?

“I have always thought that the administration and their supporters were greatly underestimating the likelihood that this would all get struck down in court,” said Michael McConnell, a law professor at Stanford University.

As I noted in National Review, initially supporters of DAPA scoffed at the challenge. Could it possibly be that the adminstration drank its own Kool Aid? Were they so swept up in ridiculing those who argued the policy was unlawful, that they didn’t have an honest assessment of how a court would review it? The poorly-reasoned OLC opinion may be a testament to this fact.

Further, the administration has to know that the time is ticking. As I closed my article in National Review this morning, Judge Hanen’s ruling could allow Texas to run out the clock on the Obama administration:

Even if the administration complies with the notice-and-comment process of the APA — unlikely with only 20 months until the next election — such a broad policy of non-enforcement would still run afoul of the Take Care clause.

Eric Posner makes a similar point in the Times:

The ruling confronts the administration with a series of uncomfortable choices. Its decision will be affected by the reality that time is not its friend.

The president could concede the judge’s point about administrative procedures by agreeing to publicly advertise his immigration program and accept public comments. But that would take months, and his adversaries could still mount other legal challenges after that comment period ended.

“In practice,” Mr. Posner said, “notice-and-comment rule making can take years.”

I have no clue what they are doing.