The legal weapons are being loaded. The rush is on for positioning. Interns, paralegals, special interest groups, lawyers, judges, and even lobbyists are helping to prepare their attack or defense of the President’s executive order to “prioritize” incarcerations and deportations, essentially allowing up to five million illegals the opportunity to work in the United States and receive benefits.
After the 5th circuit court rejected the President’s efforts to push forward his executive action supporting illegal immigrants, there are two possibilities. One would be to appeal to a larger panel of judges on the appeals court in hopes of overturning the 2-1 ruling. The judges who rules against the legality of the executive order were appointed by Presidents Ronald Reagan and George W. Bush. The pro-executive order judge was appointed by President Jimmy Carter.
This path is unlikely because it’s hit or miss and could take longer. The second possibility is for the Department of Justice to issue certiorari asking the Supreme Court to hear the case. Timing is everything for Obama. If they do not choose to hear the case this term, it is practically impossible for the ruling to go into effect before the end of the President’s 2nd term.
Republicans are cheering the decision which holds the executive order in check, expanding on the original ruling in February by U.S. District Court Judge Andrew Hanen that that relied on a procedural technicality. The appeal ruling upholds the original premise for halting execution of the order and adds that the President and the Secretary of Homeland Security do not possess the legal authority to enact the order.
While this is good news for his opponents, the President is confident that if he can get the Supreme Court to hear the case this term, he will see one of the pinnacles of his Presidency take effect as early as next summer.
Bad News and Good for Republicans
While this ruling is a victory, it could be short lived. If the Supreme Court hears the case, their recent history of supporting the President’s initiatives could mean that the executive action will go into effect. The Justice Department masterfully expedited the lower court decision for this very contingency. They have been pressing for a decision since August when the ruling was expected. Since then, Judge Carolyn King, the lone dissenter, has expressed her dismay with delays.
“I have a firm and definite conviction that a mistake has been made,” she wrote. “That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay.”
The delay, if indeed it was one, might not have been quite long enough. The Justice Department has time to compel the Supreme Court to hear the case this term.
The good news for Republicans is that if the Supreme Court overturns the decision, it will come right in the middle of the Presidential election. GOP candidates will be able to latch onto the decision as another reason that they need to be put in the White House as quickly as possible to prevent further damage from the Democrats and a Supreme Court that seems to want to legislate from the bench.
GOP candidates Donald Trump, Ben Carson, and Ted Cruz have pointed to immigration as being important parts of their Presidency. Nullifying President Obama’s executive order will be a central theme for their campaigns if the Supreme Court gives them that chance. While the legalities surrounding competing executive orders are muddled, the hope of such an action would give the eventual GOP nominee strong ammunition in head-to-head battles with the Democratic nominee. Both Hillary Clinton and Bernie Sanders support President Obama’s executive order.
With immigration being such a hot topic, a win for President Obama might come at the cost of losing the Presidency to the Republicans next November.