• Mario Nicolais

Did President Obama Win by Losing on Immigration?

The Fifth Circuit Court of Appeals recently upheld a preliminary injunction against President Obama’s executive actions to implement the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”) and expand the Deferred Action for Childhood Arrivals program (“DACA”). On its face, the ruling effectively rebuffs the President’s plans and bars the programs from moving forward.


However, the ruling from the Fifth Circuit, who effectively hear appeals from Texas, Mississippi, and Louisiana, was not unexpected. But the timing clears a direct path to the Supreme Court while President Obama remains in office. That is the silver lining many proponents have focused on in the days following the decision.


The President garnered headlines across the country last November when he issued several executive orders designed to provide legal status to the parents of citizens or lawful permanent residents who entered the country illegally. In statements at the time, President Obama referenced the failure of Congress to take action on comprehensive immigration reform and his decision to act unilaterally to effect public policy.


After President Obama issued his executive orders, the State of Texas immediately filed a lawsuit in the Southern District of Texas asking the federal court to prevent the Department of Homeland Security (“DHS”) from implementing DAPA and expanding DACA. In essence, Texas claimed the President, through the DHS Secretary, failed to provide proper notice and allow comments related to major policy change. Consequently, the programs ran afoul of the regulatory process governing actions by the executive branch.


Furthermore, Texas felt the President’s actions subverted the constitutional system of checks and balances between the three branches of government and the states. Twenty five other states agreed and fell in line behind Texas.


In a lengthy “Memorandum Opinion and Order,” the district court found that Texas had standing to challenge the orders. More importantly, the district court agreed that Texas showed a substantial likelihood of success on the merits. While not guaranteeing ultimate victory, crossing that legal threshold dictated that the court issue a preliminary injunction against and halt DHS from proceeding with the programs until a final decision on the merits could be reached.


Of course, in the legal system, a final decision would be years, if not decades.


Foregoing an immediate appeal to the Supreme Court when the Fifth Circuit refused to stay the district court’s injunction, the Obama Administration decided to push on with a direct appeal over the injunction itself. Had it done otherwise, the argument over the stay could have dragged on for weeks or months and ultimately delayed the more substantive appeal over the injunction. If the delay lasted long enough, if would have meant the Fifth Circuit’s decision may not have issued early enough for the Supreme Court to hear and rule on the substantive appeal during its current session. Waiting until the next session would mean the country would likely have a new president by the time the Supreme Court delivered its order.


Staring at that domino effect, President Obama and the Justice Department gambled. They gambled and may well have won.


While the Fifth Circuit agreed to hear the matter in an expedited manner, and the court’s generally stated goal is to issue opinions within 60 days of completed arguments, the appeal languished since early July. Anxious proponents decried the delay and second-guessed the strategic decision. But when majority opinion came out on November 9th, the swift response from the White House seemed as though it had been in the can ready for release for several months. It isn’t hard to imagine that the substance of the Supreme Court appeal had already been written and the only task remaining for President Obama’s attorneys before filing is filling in a few blanks.


After filing, the stage will be set for briefs, amicae, and oral argument. As we roll into spring, the case will take a position at the forefront of the legal world, alongside religious liberty challenges to the Affordable Care Act and abortion restrictions. What is more, the decision will likely come down at the end of June, just as the general election for the next president is ramping up. It is almost impossible to see a decision ending in anything other than a campaign flashpoint and wedge issue on the campaign trail. What the decision will be and how it will be leveraged is anyone’s guess. But those are all questions for another day.


With the country’s current attention largely diverted elsewhere – presidential primaries, terrorist attacks in France, and the ailing foot of Peyton Manning – the battle to date over DAPA and DACA presented a rare chess game of political brinksmanship between co-equal branches of government. At this point, it looks like a game President Obama is winning.



This column appeared in the print edition of The Colorado Statesman.

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