It’ll Get Worse Before It Gets Better on Immigration Actions

The people who are trying to overturn the president’s executive actions in immigration chose carefully in venue-shopping for a judge like Andrew Hanen, a man with quite the history on the subject. They also knew Hanen’s court was in the most conservative Court of Appeals circuit, the 5th, improving the odds the district judge’s angry rant of an opinion might survive the first stage of appeal.

But the plaintiffs got really lucky in the selection of the three-judge panel who will hear the appeal at the 5th Circuit, as explained by ThinkProgress‘ Ian Millhiser:

Judge Jerry E. Smith’s presence on the panel that will hear oral arguments in Texas v. United States on Friday is simply a disaster for the DAPA and expanded DACA programs. Smith, the self-described former right-wing activist, once described feminists as a “gaggle of outcasts, misfits and rejects.” He is one of five judges on the Fifth Circuit who once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial. In a case involving an obscure provision of the Affordable Care Act, Smith badgered a Justice Department attorney and ordered the department to produce a letter explaining whether they agreed with an inartful statement by President Obama.

Smith’s conservatism is tribal and, at times, belligerent. It would be very surprising if he cast a vote in favor of politically controversial programs spearheaded by Barack Obama.

He is joined on the panel by Judge Jennifer Elrod. Elrod is a George W. Bush appointee, while Smith is a Reagan appointee, so her record is not as thick as Judge Smith’s. Nevertheless, in her eight years on the bench she has generally behaved as a loyal conservative….

Elrod’s record on immigration suggests that she will take a similarly conservative approach. In Villas at Parkside Partners v. City of Farmers Branch, the full Fifth Circuit voted 9-5 to strike down a local ordinance that effectively made it a crime for undocumented immigrants to rent a home. Elrod dissented from this decision, claiming, somewhat improbably, that the ordinance “does not constitute a regulation of immigration.”

The third judge is an Obama appointee, but will likely be outnumbered. If this transpires as expected, then the administration will have to appeal to the full 5th Circuit, and if that fails, to SCOTUS. Unless the full 5th Circuit or SCOTUS intervenes to give the affected immigrants relief pending the appeals, Hanen’s order against implementation of Obama’s executive actions will remain in force. That the ultimate disposition of the case looks a lot more positive for the administration is cold comfort for those needing help right now.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.