Today on MSNBC, via WSJ, White House Domestic Policy Director Cecelia Munoz offered these comments about the timing of the appeal in Texas v. United States.
We think that the case that we’re arguing in July may ultimately get to the Supreme Court. The challenge is that if we were to appeal this stay, the decision that happened this week, one way or the other, whether the government won or lost, we would still have this other argument to make and people would not have the certainty they need in order to benefit from this program. So this is about making sure that we are fighting vigorously, winning the case on the merits, so that when the time comes that we’re implementing this program, people can be sure that it’s not going to get further entangled in litigation.
In other words, even if SCOTUS granted a stay, aliens would be afraid to sign up if the Court would ultimately reverse on the merits. Last night I blogged that the President effectively threw in the towel by not seeking a stay. I think this comment–no doubt intended to assuage the immigrant community–confirms my hypothesis. Whether or not SCOTUS granted a stay–allowing DHS to implement DAPA while the appeal is pending–there is no way this policy goes into effect before President Obama leaves the White House. For one reason, there simply won’t be time for POTUS to implement DAPA in the waning days of his Presidency. But more importantly, aliens would be wary of signing up now (if a stay was granted) if the 5th Circuit, or even SCOTUS, ruled against the federal government on the merits. Further, anyone who signs up in the end of 2016 may fear a Republican President could use that information against them. This was always the danger of deferred action in the absence of a statute. The next President can reverse it with the stroke of a pen.
But if this is the right argument, why bother seeking a stay from the 5th Circuit? Why wouldn’t they simply have appealed Judge Hanen’s ruling? This would have been a smarter choice, but it is likely that political pressure prevailed.