On May 26, a divided panel (2-1 Vote) of the Fifth Circuit Court of Appeals denied the federal government’s request for an emergency stay of the Texas federal district court’s decision (or preliminary injunction) that blocked DAPA and “expanded” DACA from being implemented.  The circuit court’s decision leaves in place, for now, the February nationwide injunction of the two major immigration actions announced by President Obama in November 2014.  This decision, however, applied only to the request for an emergency stay while the federal government’s appeal of the district court’s decision moves forward. It is not the Fifth Circuit’s final ruling on whether the district court (Judge Andrew Hanen) was correct in granting the preliminary injunction in the first place and blocking the immigration actions nationwide.  While two of the three judges on the Fifth Circuit panel voted to deny the stay, one of the judges disagreed and authored a powerful dissent outlining why the order blocking the president’s immigration actions is legally and factually unsound and why the emergency stay should have been granted.

A new order this week from the 5th Circuit U.S. Court of Appeals has asked the Justice Department and the 26 states challenging Obama’s moves to file legal briefs by June 18 offering views on the opinions of the May 26 panel.  The 5th Circuit has announced that a new three-judge panel will hear arguments in New Orleans on July 10 on the merits of the current appeal.  This gives Democrats and Immigration Advocates some hope that there will be some independence with respect to the Merits Panel, and that its not a forgone conclusion that the sentiments of the May 26th Republican dominated Stay Panel will be maintained.

The new order refers to a 1997 case in which the 5th Circuit held that a merits panel wasn’t bound by an earlier motions panel, particularly on the question of jurisdiction.  The new order does seem to relieve some Advocates worries that the same panel that heard the stay issue might wind up ruling on the substance of  the dispute as well. The order doesn’t name the panel considering the merits of the appeal, but it would seem unlikely that the same set of judges would comprise both sets of panels.