the Fifth Circuit Court of Appeals in New Orleans announced the three judge panel scheduled to hear arguments this
Friday, April 17th, over the Department of Justice’s request for a
stay of an injunction against the Obama administration’s executive immigration
issue the judges will have to consider is whether to allow the injunction
issued on February 16th by District Judge Andrew Hanen to remain in
effect while an expedited appeal moves forward.
The panel announced Monday is unlikely to be the panel that makes the final
decision on the legal merits of Judge Hanen’s decision. A new panel will likely be scheduled to hear
arguments over that issue sometime next month.
the composition of the panel may not bode well for the Obama
administration. Of the three judges, two
are Republican appointees. The third,
Stephen Higginson, was appointed by President Obama. The GOP appointees include Jennifer Walker
Elrod, appointed by President George W. Bush, and Jerry Smith, appointed by
President Ronald Reagan.
Smith is by far the most famous of the panel.
His quasi celebrity status dates back to his involvement in litigation
concerning the Affordable Care Act in 2012 when he garnered attention for
lecturing Department of Justice attorneys and assigning them homework. Antics aside, his reputation is that of a very
conservative judge, having described himself as a former “right wing activist.” Judge
Smith is Yale educated and came to
the circuit court after practicing law in Houston.
Judge Smith’s history and Judge Higginson being an Obama appointee, the
decision may come down to how Judge Elrod views the issue. While she is a Bush appointee, and presumably
conservative, her record is not as extreme as that of Judge Smith, so it is
possible she could be swayed.
course, the issue most people are not talking about is the role the Fifth
Circuit’s recent unanimous decision
in Crane v. Johnson might play. In Crane,
the Fifth Circuit rejected a challenge to President Obama’s 2012 Deferred
Action for Childhood Arrivals (DACA) program brought by the state of
Mississippi and agents of Immigration & Customs Enforcement (ICE).
Crane, the arguments presented by the
plaintiffs mirrored those offered by Texas and 25 other states in their
lawsuit. Additionally, the immigration
actions currently enjoined by District Judge Hanen are an expansion of his 2012
will be interesting to see how the Fifth Circuit attempts to differentiate the
current lawsuit from Crane, assuming
they want to. Until then, arguments will
last two hours this Friday with a decision to follow. Regardless, these issues may not be resolved
until the U.S. Supreme Court has a say on the matter. Time will tell.