DREAM Act Portal Forum - Professor Stephen Yale-Loehr Explains What Comes Next

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Professor Stephen Yale-Loehr Explains What Comes Next

Quote:

The U.S. Court of Appeals for the 5th Circuit has blocked President Obama’s executive action on immigration from going into effect. The executive action would have blocked the deportation of the parents of lawful citizens and would have granted work permits. The Court held that the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) likely violated federal law and the Constitution. Professor Stephen Yale-Loehr discusses the ruling in this report. (The original action was also discussed by Professor Loehr in this earlier LBN report.)
Professor Loehr points out that the action by the Court of Appeals only concerns the preliminary injunction and does not address the merits of the lawsuit. In fact, the Court’s decision was not a decision on the initial action, but on a request by the administration to stay the injunction while the basic lawsuit is decided. That request was the subject of the Court’s adverse ruling.

As to what will happen next, the 5th Circuit will hear arguments on the preliminary injunction in July and will probably not issue a decision until the fall. If the government loses on the injunction, it might ask the Supreme Court to hear the case, but it is unlikely that the Supreme Court would agree to hear an injunction case. It would probably require a full trial in the district court before there could be any reasonable chance of an appeal to the Supreme Court.

As to what is likely to happen, Prof. Loehr notes that a number of things are going on in this case. One complaint is that the government violated the procedural requirement by not publishing a rule and asking for comments. That particular issue is the only thing before the 5th Circuit in the appeal from the preliminary injunction. However, the states have also argued that there are constitutional and statutory issues involved in the disputed policy. Prof. Loehr suggests that it will take some time for the district court to sort everything out in order to have a trial on the merits.

There is also the larger issue whether states should be allowed to inject themselves into the actions of the federal government in its implementation of immigration policy. Probably everyone would agree in principle that the federal government should be in charge. “Immigration touches foreign borders and foreign affairs.” There shouldn’t be fifty different immigration policies, one for each state. On the other hand, if a state feels it is being affected unfairly or disproportionately by a federal policy, it has a right to sue the federal government. The district court will have to work through all of this.

Stephen W. Yale-Loehr is an Adjunct Professor of Law at the Cornell University Law School. He is one of the nation's preeminent authorities on U.S. immigration and asylum law. A prolific scholar, he has written many law review articles, and is author or co-author of four standard reference works. He is the 2001 recipient of the American Immigration Lawyers Association (AILA)'s Elmer Fried Award for Excellence in Teaching and the 2004 recipient of AILA's Edith Lowenstein Award for excellence in advancing the practice of immigration law

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So, just so everyone understands, if the government loses the fight against the injuction, there has to be a full trial in district court, not an order, not an opinion, a trial under Judge Hanen. He issued the injuction while a trial on the merits for DAPA - not DACA - are discussed. And that is another thing, the entire 5th circuit opinion is about DAPA because DAPA is the new program. DACA is simply being amended or modified. It is being lumped together with DAPA, and I don't understand why the DOJ won't make it clear that they have the authority to make changes to DACA policy since it is existing guidelines. The court made it clear that the issue is with DAPA, not DACA or even extended DACA for that matter.