Deciding not to wait any longer for a federal judge in Texas to act, the Obama administration on Thursday asked a federal appeals court to clear the way for the government to put into effect its broad new immigration policy. That policy has been on hold under the Texas judge’s order, but that judge has postponed any action on the government’s request to begin implementing the policy, which could allow more than than four million undocumented immigrants to stay in the U.S.
In a flurry of activity on Thursday, the Justice Department told U.S. District Judge Andrew S. Hanen of Brownsville that it was moving on to the U.S. Court of Appeals for the Fifth Circuit because the need to implement the policy was urgent, it filed a formal request with the Fifth Cicuit Court to put Judge Hanen’s postponement order on hold, and it asked the Fifth Circuit Court to act speedily on that request.
If the Fifth Circuit Court is not willing to allow the new policy of deferred deportation to go into effect all across the nation, the government told that court, it should narrow the scope of the delay order so that either (a) the policy would be on hold only in Tcxas, or (b) it would be on hold in the twenty-six states that had sued to challenge the policy, and thus it could go into effect in the other twenty-four states.
In mid-February, the twenty-six states had persuaded Judge Hanen that they were likely to win on at least one of their legal challenges when the case goes to trial, so the policy should be blocked. Since then, the Justice Department has twice asked Judge Hanen to lift his order so that the policy could go into effect while the governnment appeals; he has not yet turned down either one of those requests, but has taken alternative action that has frustrated the department’s goal of going quickly to the Fifth Circuit Court for help.
Seeking to end that frustration, the government chose to wait no longer for the judge to act, and moved on up the judicial ladder to the Fifth Circuit Court.
Among the filings the Justice Department made in Judge Hanen’s court on Thursday was a response to a new claim by the twenty-six states that Justice Department lawyers had misled him about delaying the start of the new policy. The department apologized for any confusion, but said the actions that it took to implement changes in deportation policy applied only to operations that are not at issue in the case before the judge.
The judge has scheduled a hearing for March 19 on that new dispute in the case.
Because both sides in the underlying controversy over the new policy are taking strongly contradictory positions on the government’s power to change deportation priorities without new legislation from Congress, this dispute appears headed for the Supreme Court.
If the Fifth Circuit Court, at this stage, refuses the Justice Department request to at least partially implement the policy, it is likely that the department will ask the Supreme Court to do so.
At this stage, the actual legality of the new delayed-deportation policy has not been decided, in any court. That basic dispute is unfolding in Judge Hanen’s court while, simultaneously, the Justice Department has been attempting — so far unsuccessfully — to get Judge Hanen to permit the policy changes to proceed on a temporary basis.