Are the Obama Administration's immigration reforms headed to the High Court?

|The Volokh Conspiracy |

Earlier today a divided panel of the U.S. Court of Appeals for the Fifth Circuit denied the federal government's application for a stay of a district court injunction against implementation of the Obama Administration's recent immigration reforms. Put into plain English: The lower court concluded that the plaintiff states were likely to prevail in their challenge to the Administration's new immigration policies, and two of the three appellate judges who heard the case agreed. The opinion is available here.

[Appeals court rules against Obama on immigration]

This case arises out of a challenge brought by 26 states against the Obama Administration's controversial immigration reforms. Although the ruling below focused on procedural administrative law issues—specifically whether the Administration was required to go through an official notice-and-comment rulemaking process before adopting this sort of policy—it certainly suggested that the judge would side with the states on the merits of their claims. Likewise today's opinion, while keyed on the procedural questions, appears quite sympathetic to the states' underlying arguments. Judge Smith wrote the majority opinion, joined by Judge Elrod. Judge Higgonson dissented, arguing that the case is not justiciable.

Today's decision leaves the Administration with a choice. It could seek immediate en banc review of the panel's decision before the full Fifth Circuit, or it could seek Supreme Court review. I suspect this decision will turn on where the Justice Department believes it has the best shot, so don't be surprised if this case is heads to One First Street. The Justice Department also has the option of simply waiting for a full hearing in its appeal of the district court's decision. Oral argument is scheduled for July, but it will [could] be before the same panel, and today's decision gives a fairly good indication of how [at least some on] the court is [are] likely to rule.

For more, Josh Blackman has extensive case excerpts and How Appealing rounds up early news coverage.

UPDATE: Lyle Denniston has more on SCOTUSBlog.

[Note: I corrected/clarified my discussion of the current procedural posture of the case.]

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