DOJ Files Emergency Stay of the Decision In Texas v. U.S.

Today, the Department of Justice asked the federal district court in Texas for an emergency stay of the preliminary injunction that stops the Department of Homeland Security from implementing the deferred action policies announced by the President in November. The DOJ is seeking an emergency stay because it contends that the district court decision will cause irreparable harm to the Department of Homeland Security (DHS) and prevent it from maximizing its limited enforcement resources.

The emergency stay is not likely to be granted given it is before the same judge who ordered the stay in the first instance. Moreover, the DHS can continue to set guidelines for how it manages enforcement resources, without granting affirmative benefits. For example, it can do so by declaring a moratorium on deportations. As such, even though the government would most likely prevail ultimately, the stay request appears to be weak.

If a full stay is not granted, the Department of Justice has asked the district court to at least stay the effect of its injunction so that it does not apply outside of Texas, including in the many states that have affirmatively told the district court that they support the deferred action policies and expect to benefit from them. The Department of Justice has asked the district court to rule on the stay motion by the close of business on Wednesday, February 25. The Department of Justice has also filed a notice of appeal indicating that it is appealing the preliminary injunction decision to the U.S. Court of Appeals for the Fifth Circuit.

Legal scholars agree the district court decision is wrong. Administrative law expert Cass Sunstein observed, “Judge Hanen was right to focus on the APA and the technical requirements of the law.  But he got the technical arguments wrong.”  Legal scholar Eric Posner has similarly explained, “Obama’s new immigration program is perfectly legal and should not be blocked.”  He emphasized that “there is an exception in the APA for general statements of policy,” and that “Judge Hanen has inflicted a lot of misery and disappointment on people without good reason.”

More importantly, the court’s decision does not affect the existing DACA policy. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. And, the Court’s order does not prevent the Department of Homeland Security from setting enforcement priorities, meaning the Department should still grant stay of removal requests for individuals who do not fit into the new enforcement priorities.

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