The Fifth Circuit Court of Appeals has upheld an earlier decision to block President Obama's executive orders which would have expanded eligibility for relief from deportation for certain immigrants and their families, but it may turn out to be a good thing in the end.
To explain, on Monday evening, an especially conservative panel of the conservative United States Court of Appeals for the Fifth Circuit handed down a decision blocking much of President Obama’s immigration policy — in effect thrusting 4.9 million undocumented immigrants who expected to benefit from an expansion of the Deferred Action for Childhood Arrivals program, known as “DACA,” and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program, known as “DAPA,” into limbo. This decision should surprise no one, however, as both of the judges who joined the Fifth Circuit’s majority opinion previously sat on a panel that handed down a more temporary order casting doubt on the two programs. Neither of these Judges, Jerry Smith and Jennifer Elrod, have changed their mind about DACA and DAPA since last May, when that first order was handed down. The third judge on the more recent panel, Judge Carolyn King, dissented.
Yet, while Smith and Elrod were widely expected to rule against the Obama administration a second time, administration officials — and the immigrants who hope to benefit from the expansion of DACA and the creation of DAPA — spent the last several months sitting in horror as time ticked away without Smith and Elrod handing down their inevitable decision. Roughly speaking, if Verrilli is able to get a petition before the Supreme Court asking them to hear the Fifth Circuit’s decision by the middle of this month, then it is possible that the case will be decided by the end of June. If Verrilli is unable to do so (perhaps because Smith and Elrod took to long to hand down a decision for Verrilli to appeal) the Supreme Court’s resolution of the case would most likely wait until next June 2017 — months after President Obama leaves office.
With Smith and Elrod’s opinion finally coming down on November 9, Verrilli and his colleagues are now in a race against the clock to submit a petition to the justices before time runs out. There’s no way to be certain when Verrilli must submit this petition to avoid delaying resolution of this case another year. It is likely that the solicitor general may still have a few precious days to submit the petition — and the deadline may have already passed.
If the deadline hasn't passed, it's possible the case will come up before the end of this court year, which means we'll all be sitting on the edge of our seats yet again. But this time, Republicans had better be careful what they ask for, since they might like to take some executive actions if they ever -- God forbid -- win the White House again.