Today the Justice Department announced that it would not seek a stay of the Fifth Circuit’s decision upholding Judge Hanen’s injunction. Rather, they will pursue the appeal.
“The department believes the best way to achieve this goal is to focus on the ongoing appeal on the merits of the preliminary injunction itself,” said Patrick Rodenbush, a spokesman for the Justice Department. “Although the department continues to disagree with the Fifth Circuit’s refusal to stay the district court’s preliminary injunction, the department has determined that it will not seek a stay from the Supreme Court.”
Seeking a stay was never a good plan. The burden of proof is too high, as the judgment below is effectively reviewed for clear error. (Judge Higginson in dissent didn’t apply anything approaching a clear error standard). Politically, this was probably a necessary decision, but strategically the Obama Administration suffered a stinging defeat that shades any future appeal.
So what happens next? The appeal will be heard the week of July 6 (we don’t have an exact date yet). As far as the panel, Judges Smith, Elrod, and Higginson could potentially hear the merits appeal. The usual policy is that the merits panel and the motions panel are different, but when the cases are so closely interwoven, it is conceivable that the same panel may hear both in the interests of judicial economy. That would likely expedite the timing of a decision, though we can be pretty sure how each judge would vote. Even assuming the case is decided on an expedited basis from another panel, it may be another three months before we get a decision.
Assuming the judgment goes against the government, the Solicitor General would file a cert petition in October. Texas would file a reply in November. Assuming cert is granted, there would be arguments in March, with a decision in June 2016. If Texas loses, and the Court uphold the policy, it would be extremely difficult for the President could process all of the applications a few months before the election. Recall the injunction in place now prevents the government from doing any preparation for the process. That wouldn’t go away until the summer of 2016 (after the mandate issues), and there would be time needed to ramp up the process. As the New York Times notes, the issue “might not be resolved until just months before he leaves office.”
If the Court rules in favor of Texas, and finds notice-and-comment is required, there is absolutely way this administration could go through the process. (Perhaps a future Democratic President could). DAPA is done.
There is one other possibility. The Fifth Circuit panel rules agains Texas on the merits. At that point, Texas seeks en banc review. That may add another 4 or 5 months to the process–especially if the decision is fractured. If the federal government loses, it would not be able to file a cert petition until January or February of 2016, and Texas would not file its reply until March of so. As we learned with the same-sex marriage appeal, a petition filed that late would not be heard during the October 2015 Term. The Court could schedule really-expedited arguments, but this is unlikely, as DOJ’s decision not to see a stay should create an adverse inference that this isn’t so urgent. It would be kicked over until the October 2016 term. Come January 2017, there will be a new President, who may decide to dismiss the case before a decision is rendered. (I previously wondered what a President Romney would have done to DOMA appeal).
In any event, as I noted months ago, Texas can run the clock out. The entire litigation process has been so disjointed. I think Texas really took DOJ by surprise, and the feds have been outmatched procedurally. And don’t forget–Judge Hanen still has jurisdiction over the case, and will likely order more discovery in light of continued malfeasance by DHS. The more information that is revealed, the shakier of a legal footing the policy sits on. Had DHS not blundered by granting extended DACA applications after the injunction issued, a lot of less information would have been revealed, and their case would be much stronger.
By not seeking a stay, I think the Administration has basically thrown in the towel. I don’t see how this policy ever goes into effect while President Obama is still in office.