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Why Is There No Decision On DAPA From The Fifth Circuit?

Why is there no decision from the Fifth Circuit Court of appeals on the Obama administration's appeal of the District Court order temporarily stopping DAPA (Deferred Action for Parental Accountability)?  This is the question on the minds of millions of undocumented parents of US Citizens.  President Obama announced DAPA on November 20, 2015, with much fanfare and gave a sense to the immigrant communities around the US that he would finally attempt to fulfill his empty campaign promises on Immigration Reform.

I have blogged previously about how Obama could solve the problem raised by the District Court Judge by simply creating and implementing regulations, something he could have EASILY done in February when the District Court stopped the DAPA memo from moving forward, but which until today, six months later, he has not done (and it would have been in effect now)!  Don't expect Obama to help the immigrant community by moving forward in the regulatory path any time soon, if ever.

Back to the question at hand.  There are only two plausible  reasons why the Fifth Circuit has not issued a decision in this case.

First, and highly unlikely, the three judge panel is going to issue a decision overturning the District Court, and the decision doing so requires massive mental gymnastics to overcome the Fifth Circuit's prior upholding of the stay put in place by the District Court.  After all, the panel consists of the same two GOP appointed judges who upheld the District Court's decision before, two judges who are notoriously the most anti-Obama judges on this particular Circuit Court.  Obviously, if they are going to change their mind and position, they are going to have to provide amazing justification for doing so. Nothing is impossible in the law, but this potential result comes pretty close.

Second, and the most likely reason is as follows.  These two conservative Fifth Circuit judges understand that the Obama administration will immediately appeal this case to the US Supreme Court. They also clearly understand that there is a majority of the US Supreme Court which will permit the DAPA rules to proceed, based upon very recent precedent issued by the Supreme Court (last term) on executive actions.  By delaying the decision, the two judges are delaying the ability of the Obama administration to file an appeal, each day making it less and less likely that there will be sufficient time in the Supreme Court's term to accept the case, provide a briefing schedule, conduct oral arguments, and issue a written decision, prior to the end of this current term, on June 30, 2016.

Essentially, this would mean that arguments for and a decision on DAPA would occur right in the middle of the next presidential election season.   Further, by delaying the issuance of the decision, they are making it more and more useful in the GOP political primaries, when they do make the decision,  Further igniting the small base of GOP voters who oppose Obama on every issue and especially on executive action.  This is the reality of the situation. Who says judges cannot be political?

So, while we could have a decision on the DAPA appeal soon, my bet is that we are still some time away from having a decision on this case from the Fifth Circuit.

It is also becoming less and less likely that DAPA will take effect while Obama is still sitting in the White House, making naturalized citizen participation in the presidential election process vital to ensuring that someone who holds the office of President is pro-immigrant, pro-family, and pro economic growth.

Here is my take (in Spanish) on this issue, as it appeared this week on Telemundo


  1. Another possibility is that there is a dissent and they're going back and forth with drafts. That can make the decision-writing process longer. Also, the Fif just takes a while. Earlier this year we won in the Fifth on an issue of first impression (with no dissent or concurrence), and that decision took 8 months following briefing (with no oral argument).

  2. I think you meant 2014....

  3. Matthew, you really think the dissent is holding this up? This decision was written in June before oral arguments!


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