Stay could prolong Obama immigration battle just a little bit longer

The fight over a Texas-based federal judge who has blocked the Obama administration’s latest immigration policies is moving to Louisiana.

On Friday, White House spokesman Josh Earnest said the Justice Department will file for a stay of the ruling issued by U.S. District Judge Andrew Hanen earlier in the week as it seeks an appeal.

Hanen’s ruling temporarily stopped the Obama administration and the Department of Homeland Security from proceeding with President Obama’s executive orders, which could allow millions of illegal immigrants to remain temporarily in the United States.

The federal 5th Circuit Court of Appeals in New Orleans will be the next court to weigh in on Hanen’s ruling, as it considers the Obama administration’s stay request.

Hanen found that the executive orders and their implementation didn’t allow enough time for public comment, under the terms of the 1946 Administrative Procedure Act. The law requires that  proposed regulation changes appear in the Federal Register to give the public a chance to comment. Hanen didn’t rule directly on the constitutionality of the immigration executive orders.

Most of the 23 judges in the 5th Circuit Court of Appeals are Republican appointees. However, that may not be an indication of how the court could rule on what is now a technical, procedural case.

Anne Joseph O’Connell, a University of California Berkeley law professor, told Bloomberg News earlier this week that the fight over public comment provisions and regulations is a constitutional grey area.

“The case law as to what qualifies as a legislative rule is remarkably unclear,” said O’Connell.

Michael Dorf, a law professor at Cornell, told us on Thursday during a National Constitution Center podcast that “it’s anybody’s guess” how the appeals process will turn out, but the pressure is on the Obama administration.

Podcast Link: Dorf, Shapiro on the Obama immigration case

“Their first line of attack will be to seek an emergency or expedited review first in the Fifth Circuit and then if that fails, in the Supreme Court,” Dorf said. “I think they are in a bit of a bind here .. they don’t have any real good options,” Dorf said about the Obama administration’s appeals prospects.

Ilya Shapiro from the Cato Institute told us on the same podcast that the stay request should have been filed by the Justice Department on the same day as Hanen’s ruling. Shapiro doesn’t believe the Supreme Court will be in a hurry to hear or accept the case, if and when it gets to the high court.

“The government’s not harmed for delaying a policy,” Shapiro said, adding that a hearing this fall could be possible at the high court.

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