I’ve been racking my brain, trying to figure out why DOJ didn’t have an appeal strategy ready to go on day one (here and here). For the last month, it has been clear (to me at least), that Judge Hanen would rule against the government. So why the dithering? Here we are on Friday, and no notice has been filed.
One possible option is that now the Solicitor General is involved in the process. In DOJ, the SG’s signoff is needed for any appeal (with good reason). It’s possible that now the SG is exerting some influence. I previously mentioned that while the DOJ’s initial briefing was pretty poor, the sur-reply got a lot better. I suspect the SG got involved then, and is now trying to correct this mess.
So what is the SG thinking? The choice is between a stay or an expedited appeal. Both have plusses or minuses.
The advantage of a stay is speed. The issue will be resolved quickly by the Circuit Court, and can get to SCOTUS before the end of this term, or perhaps expedited arguments in September (like in Citizens United). The downside of the stay is the burden of proof–the government would need to show some sort of irreparable harm if the stay is not granted. I’m not sure what the irreparable injury is, because with the injunction, the ex ante status quo remains in place. This was one of the stronger aspect of Judge Hanen’s opinion. In his words, you can put the toothpaste back in the tube. It will be easier for the courts to rule against DOJ here, by arguing that there is no urgency, and the normal appeals process can be complied with. So there is a severe downside to seeking a stay.
The advantage of a stay is that the burden of proof is lower, and it is (in theory at least) easier to win. The downside is speed. It may take a few months at the the 5th Circuit, potentially followed by en banc at the 5th Circuit, followed by certiorari. You may not get a decision till June 2016. This runs out the clock on the Obama administration, a point I made in NRO.
Of course, DOJ can do both, seek a stay and file a expedited appeal. But a decision on the former could possibly resolve the latter, if the 5th Circuit panel reaches the merits. So the SG may feel he is on stronger ground with an expedited appeal, rather than dealing with the heightened burden of seeking a stay.
One other option, suggested by several colleagues more politically attuned than me, is that this delay is deliberate for partisan gain. The President would rather drag this out so he can blame it on the Republicans. This could set up future immigration reform in 2016. I don’t know. I can’t imagine DOJ would allow such a reckless strategy, but if the government delays much longer, it may lend this theory some credence.
Update: About 2 minutes after my post, DOJ announced they would seek a stay on Monday. So now, they will have the higher burden of proof, but it will be resolved this year.
WH spokesman Josh Ernest says @TheJusticeDept has decided to seek a stay in Texas immigration case, docs to be filed “Monday at the latest.”
— Carrie Johnson (@johnson_carrie) February 20, 2015