The government’s strategy since Texas v. United States was filed back in January has befuddled me. After Judge Hanen ruled against them (as expected), they dithered over seeking a stay, and ultimately did several weeks later. By seeking a stay, rather than just seeking an expedited appeal, the process was drawn out several months. After the 5th Circuit denied a stay, they again dithered over whether to seek a stay from the Supreme Court, and ultimately decided not to. Based on my calculations, this delay means that the issue will almost certainly not be decided by the Court until June of 2016 at the earliest (assuming the government can get a cert petition in by October, and it is argued around March). I couldn’t quite figure out why the White House was content to let this issue sit for another year before being resolved, effectively running the clock out on the Obama Presidency. The White House Domestic Policy Advisor explained the administration did not want to seek a stay, as that would only be a temporary remedy, and aliens would be afraid to sign up if the Court may ultimately find on the merits that the policy is unlawful. That answer made some sense, but I think there may be an another, far more cynical rationale.
David Leopold, a veteran immigration attorney and former president of the American Immigration Lawyers Association, said the presence of both Elrod and Smith on the appeals panel indicates that the Fifth Circuit is likely to rule against the administration again — raising the chances that this case would get pushed to the Supreme Court, perhaps during the heat of the 2016 presidential race.
“The merits are broader, but we know exactly where this court is going. Smith’s and Elrod’s opinion pretty much mirrors what Judge Andrew Hanen did, absent the political diatribes,” Leopold said Monday. “Unfortunately for the GOP, if this case goes to the Supreme Court, the Court will have to fix it and the GOP will be facing yet another national loss which will be bad for them politically and further tarnish their brand with Latinos.”
A few months ago, a lawyer friend suggested that the Administration was content to drag this process out because it gives the Democrats political gain, and forces the Republicans to take tough positions on immigration. Think of how King v. Burwell put many Republicans under pressure concerning Obamacare. The immigration case doesn’t quite fit that bill, but it’s close. If this case does indeed stretch to June 2016 term, it becomes an important political issue for the 2016 Presidential election. If the Court rules for the President, the democrat President can assure immigrants that she will continue the policy, but the Republican President could lose those voters by pledging to halt it. If the Court rules against the President, the Democrat nominee will insist on an immigration bill that accomplishes what DAPA would have. Either way, the Democrats can gain–as Leopold explained, this case will be another “national loss.” for the GOP. I haven’t seen anyone make the election argument as clear as Leopold did, so I think this may be a new talking point to assuage those angry that the government did not seek a stay–especially after learning about the merits panel.
I don’t pretend to understand the political machinations of the Justice Department, but when the decisions had so much public infighting, I have to imagine this political calculus weighed in, somehow.