Michael D. Shear, New York Times, May 27, 2015
President Obama’s overhaul of the nation’s immigration system, which he announced in a prime-time speech to the nation last November, may remain under a cloud of legal uncertainty until months before he leaves office in 2017, legal experts and administration officials said Wednesday.
Officials from the Justice Department said in a statement that they would not ask the Supreme Court for permission to carry out the president’s immigration programs–which seek to provide work permits and deportation protection to millions of undocumented immigrants–while a fight over presidential authority plays out in the lower courts.
That legal battle may extend for a year or more, officials said, undermining any hope of putting the president’s plan into effect until right before the 2016 election.
“The timing is critical,” said Stephen H. Legomsky, a law professor at Washington University in St. Louis. “If the process drags on until the summer of 2016, then implementation becomes very difficult.”
In a statement, officials from the Justice Department said they disagreed with a decision by the United States Court of Appeals for the Fifth Circuit that continues to block the president’s immigration actions. But they said the government will fight on the merits of the program, rather than push for permission to carry it out immediately.
Officials said they were committed to defending the president’s actions and to eventually getting the immigration programs in place with certainty.
“The department believes the best way to achieve this goal is to focus on the ongoing appeal on the merits of the preliminary injunction itself,” said Patrick Rodenbush, a spokesman for the Justice Department.
Rather than continue to fight the judge’s initial order, administration officials said Wednesday that government lawyers would wait and make what they believe will be a stronger legal argument on the merits of the president’s immigration program.
Those oral arguments before the Fifth Circuit are scheduled to begin during the week of July 6, and administration officials expressed confidence that they would eventually prevail.
If the president were to win at the appeals court later this summer, legal experts said it was possible that Mr. Obama could order the program to begin later this year.
But administration officials said it was very likely that whoever lost at the appeals court would ask the Supreme Court to consider the full merits of the president’s actions. If the court agrees to hear the case, it would likely hear arguments during its term that begins in October and could issue a ruling the following June.
That would mean that the legal fate of the president’s immigration program would be decided just as the fall campaign for the 2016 presidential contest gets into full swing.