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Obama's immigration order hits another legal roadblock

More bad news for these protesters.
More bad news for these protesters.
Joe Raedle/Getty
  1. The Fifth Circuit Court of Appeals has just denied a request from the Obama administration to let the president's executive actions on immigration go into effect during the court battle over their constitutionality.
  2. The two Republican-appointed judges hearing the case sided against the administration, while the Democratic-appointed judge on the panel sided with the White House.
  3. The court ruling is part of a lawsuit filed by 26 states against the government, which resulted in a ruling in February putting the programs on hold.
  4. However, this ruling isn't about the constitutionality of the executive actions — it's a procedural ruling.

What exactly was the new ruling about?

In February, district court judge Andrew Hanen put President Obama's executive actions on immigration on hold. Hanen issued a temporary injunction — that means it's not a final ruling on whether Obama's immigration actions are unconstitutional or illegal, but it prevents them from going into effect while the courts consider those questions.

The Obama administration asked the Fifth Circuit to "stay" Hanen's injunction — essentially, to put an injunction on the injunction. The ruling the Fifth Circuit just handed down denied that stay request.

So the Fifth Circuit hasn't ruled that the programs themselves are unconstitutional. It hasn't even ruled to uphold the initial injunction Judge Hanen issued. It's just saying that it wouldn't be appropriate to put a hold on the injunction.

What are the programs the court is looking at?

As a result of Judge Hanen's ruling, the federal government had to stop both of its new efforts to grant deferred action (temporary protection from deportation) and work permits to unauthorized immigrants. It had planned to start accepting deferred-action applications from unauthorized immigrants who are older than 30, but who came to the US when they were children or teenagers, on February 18. It isn't doing that.

Nor can it put out and start accepting applications for deferred action from unauthorized immigrants whose children are US citizens or permanent residents, as it was planning to do starting in mid-May.

However, immigrants who are currently under 30, and who came to the US as children or teenagers, are still able to apply for deferred action. That's because the lawsuit isn't challenging the original Deferred Action for Childhood Arrivals program that was implemented in 2012. It's just challenging the expansion of that program and the separate program for parents, both announced in 2014.

Why were these programs stopped from going into effect?

The primary reason that Judge Hanen halted the executive actions was that he found that the administration hadn't properly followed the Administrative Procedures Act — which sets the typical procedure for making federal regulations. According to Cecilia Wang, director of the Immigrant Rights Project for the American Civil Liberties Union, Hanen's ruling says that "if [the government] wanted to do these things, it should have provided notice in the Federal Register, with period for comment." But because the Obama administration didn't do that for these actions, the ruling says, it violated the law. (The other half of Judge Hanen's ruling, saying that the states were allowed to sue the federal government to begin with, was also really narrow.)

So what happens next?

The Fifth Circuit said both of Hanen's arguments are likely to hold up when they're officially reviewed. That was part of its ruling on the stay. But it hasn't officially upheld them — it's going to hold a hearing in July to decide whether to do that.

The administration could appeal to the Supreme Court to consider their stay request. But again, if the Court took up that appeal, it wouldn't be ruling on the constitutionality of the programs — or even be ruling on the logic in Judge Hanen's opinion. It would be deciding whether it would be appropriate to let the injunction stay in effect, or whether to pause it, through the next phase of the legal battle.

For more on the lawsuit against Obama's immigration actions, see our explainer on Judge Hanen's decision from February.