The U.S. government just filed a Motion for an Emergency Stay in the 5th Circuit Court of Appeals, allowing Obama’s immigration executive action to proceed. A full copy of the motion (without Exhibits) is embedded at the bottom of this post.

Here’s the opening paragraph of the Motion:

The Federal Government seeks an immediate stay pending appeal of a nationwide preliminary injunction against the Department of Homeland Security (DHS). The Secretary of Homeland Security (Secretary) seeks to effectively prioritize the removal of aliens who have recently crossed the border, committed crimes, or threaten public safety and national security by, inter alia, establishing guidelines for considering requests for temporarily deferring removal of other aliens who pose no such threats and have longstanding and close family ties to the United States. The preliminary injunction restrains the exercise of that prosecutorial discretion, a quintessentially executive function that is traditionally unreviewable. In so doing, it undermines the Secretary’s authority to enforce the Nation’s immigration laws by disrupting the Secretary’s comprehensive effort to effectively allocate limited enforcement resources.

This takes place against the backdrop of the District Court scheduling a hearing on March 19 into whether the feds lied about implementation of the immigration executive action, and possibly were in violation of the District Court’s injunction. That meant that the District Court injunction was in effect at least until March 19, and likely beyond.

This Emergency motion in the 5th Circuit is, in many ways, the whole ball game. If the stay is refused — so the injunction remains in effect — the Obama executive action is on indefinite hold. If the 5th Circuit grants the stay and effectively ends the injunction, then the immigration plan gets implemented, making it unlikely that 4-5 million new legal residents ever would have that status revoked.

It’s unclear when the 5th Circuit would rule on the Emergency request, but we almost certainly are talking days not weeks.

(update) The court docket reflects that the feds have requested a ruling by March 26, somewhat longer than I expected. By so scheduling the 5th Circuit motion for just a week after the District Court hearing, the feds ensure a relatively speedy hearing before the 5th Circuit after the District Court presumably denies the request for a stay:

Texas v. U.S. - Immigration Case - 5th Cir - Docket Entry Emergency Stay Motion

(update 3-13-2015 — the court docket has an entry indicating the Court has given the States until March 23 to file their opposition to the motion for a stay.)

Almost simultaneously, 14 states plus the District of Columbia filed an Amicus Brief supporting the feds’ request for a stay (full embed at bottom of post):

A single State cannot dictate national immigration policy, yet that is what the district court allowed here. Relying entirely on Texas’s speculative claims, the district court enjoined vital immigration reforms nationwide. Those reforms will benefit millions of people and their families, as well as the States in which they reside. This Court should stay the district court’s order because the United States is likely to prevail on the merits of its appeal, the stay will not harm Plaintiffs, and a stay is overwhelmingly in the public interest. At the very least, this Court should
stay the order outside Texas, as no other State has presented any evidence that it will suffer the irreparable injury needed to justify injunctive relief. As the States joining this brief show below, States will benefit from these immigration reforms. The amici States should not have to live under an improper injunction based on harms other States incorrectly claim they will suffer.

More details and analysis to follow.

Texas v. U.S. – Immigration Case – 5th Cir – U.S. Emergency Motion for Stay


Texas v. U.S. – Immigration Case – 5th Cir – Amicus Brief of States Supporting Motion for Stay