The panel of judges
announced Monday that will be reviewing a motion on Friday involving President Obama's 2014 immigration actions does not bode well for government lawyers. They will be petitioning the 5th Circuit Court of Appeals to temporarily lift an injunction that has been blocking the president's immigration measures, which could provide deportation relief for as many as five million immigrants.
The silver lining for immigration advocates, however, is that this panel will likely not be the one that decides a broader appeal by government lawyers to overturn a preliminary injunction that prevents the immigration actions from moving forward.
First, the bad news. As Ian Millhiser points out, two of the three judges on Friday's panel—Judge Jerry E. Smith and Judge Jennifer Elrod—are "extraordinarily conservative."
Smith, the self-described former right-wing activist, once described feminists as a “gaggle of outcasts, misfits and rejects.” He is one of five judges on the Fifth Circuit who once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial...
Judge Elrod is perhaps best known for her decisions reading what remains of Roe v. Wade narrowly to permit Texas to enact strict restrictions on abortion. Indeed, in a decision last October, Elrod practically begged the Supreme Court to hear a challenge to the Texas abortion law, most likely because she believed that the justices would affirm her decision reading abortion rights narrowly.
Now, the silver lining, provided by
immigration attorney David Leopold.
Importantly, the April 17 hearing is not a hearing on the appeal of Judge Hanen’s preliminary injunction. It is a hearing on the Obama Administration’s motion to stay (lift) the injunction while the court of appeals considers the appeal. In effect, the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire appeal. If this panel does not postpone the injunction it will be disappointing for sure, but it doesn’t mean the Obama Administration will have lost the appeal.
Leopold notes that the appeals court has not set a date for the full appeal, nor has it chosen which judges will sit on that panel.