Thread: GOP judges in the majority on Obama immigration stay

By JOSH GERSTEIN | 4/13/15 1:37 PM EDT

A federal appeals court panel assigned to consider whether to temporarily lift a block on President Barack Obama's latest round of immigration-related executive actions leans Republican, 2-1, and contains a sharply conservative judge who drew national attention for clashing with the administration over Obama's health care reform law.

The 5th Circuit U.S. Court of Appeals announced Monday that the three-judge panel scheduled to hear arguments on the Justice Department's request for a stay of an injunction against Obama's immigration actions will consist of Judges Jerry Smith, Jennifer Walker Elrod and Stephen Higginson. Smith was appointed by President Ronald Reagan, Elrod by President George W. Bush and Higginson by Obama.

Smith is the best known of the trio. During oral argument on a health care related case in 2012, he ordered a Justice Department lawyer to do what critics described as a homework assignment: produce a three-page paper explaining whether the courts had the authority to determine whether laws were constitutional.

Smith was prompted to give the unusual instructions after Obama said, amidst debate over the constitutionality of his signature health care reform law, that it would be "unprecedented" for the Supreme Court to strike down a law passed by Congress. Obama later clarified his remarks to say he was referring to the modern era and to laws where Congress was claiming power to regulate an economic activity. (The Supreme Court ultimately upheld the individual mandate in the health care law, 5-4.)

The split on the appellate panel is consistent with the overall lean of the 5th Circuit, which is considered the country's most conservative federal appeals court. Its active Republican-appointed judges outnumber Democrats, 2-1.

The panel is set to hear two hours of oral argument Friday morning in New Orleans on the issue of whether to stay a district court judge's injunction from February blocking Obama's efforts to offer deferred deportation and work permits to millions more undocumented immigrants.

The same three judges are unlikely to make the ultimate decision on the legal merits of the lower court judge's ruling. Instead, the current panel is assigned to wrestle with the immediate question of whether the injunction should remain in effect while an expedited appeal goes forward.

Either issue or both could ultimately wind up before the U.S. Supreme Court.

http://www.politico.com/blogs/under-...ay-205433.html

Posted on April 13, 2015 by Paul Mirengoff

The Fifth Circuit has announced the panel that will hear the Obama administration’s request to lift Judge Hanen’s preliminary injunction of the president’s Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). The panel consists of Judges Jerry Smith (Reagan appointee), Jennifer Elrod (George W. Bush appointee), and Stephen Higginson (Obama appointee).

This is not a good panel for the government. Elrod is a rising star conservative judge. Smith, for whom Tom Cotton clerked, is also conservative.

Friday’s hearing will not produce a ruling on the merits of Judge Hanen’s preliminary injunction, only on whether the injunction should be stayed until the merits are decided. The merits, though, are intertwined with the stay issue.

The big question is whether the same panel will decide the merits. I don’t see why not. There is a substantial overlap between the two cases, such that it would waste judicial resources to have a different panel deal with the merits.

However, the court has not designated a panel for the merits case, so we shall see.

http://www.powerlineblog.com/archive...sty-appeal.php

They are preparing for a loss on the next round!

W