obama pensive
Barack Obama in the Oval Office of the White House in Washington May 26, 2015. The Department of Justice is defending Obama's administration against a lawsuit that argues that his prosecutorial discretion immigration policies announced in November are unconstitutional because they confer temporary work permissions to undocumented immigrants. REUTERS/Kevin Lamarque

The Department of Justice (DOJ) has begrudgingly accepted the 5th Court’s Decision to continue the delay of President Barack Obama’s executive actions on immigration. The Department had the option of seeking an emergency stay from the Supreme Court, but legal experts say that it had a miniscule chance of being considered. A DOJ spokesman said that the legal strategy would shift. On Wednesday, the DOJ announced that it would no longer challenge a Texas District Court injunction that prevents the administration from implementing DACA and DAPA, deferred action programs that would give work authorization and deportation relief to around 5 million immigrants.

“The [DOJ] is committed to taking steps that will resolve the immigration litigation as quickly as possible in order to bring greater accountability to our immigration system by prioritizing deporting the worst offenders, not people who have long ties to the United States and who are raising American children,” spokesman Patrick Rodenbush said in a statement. Instead, the DOJ will “focus on the ongoing appeal on the merits of the preliminary injunction itself. … Although the Department continues to disagree with the Fifth Circuit’s refusal to stay the district court’s preliminary injunction, the Department has determined that it will not seek a stay from the Supreme Court.”

Though the battle over Obama’s immigration actions has been fought in the courts for months, there hasn’t actually been any ruling on the substance of the case. Instead, court decisions in the past few months have dealt with what a final ruling might be, and, given a likely outcome, what the parties in Texas v. U.S. should or shouldn’t do. Wednesday’s decision was issued by a three-person panel from the 5th Circuit Court who ruled 2-1 against the DOJ’s petition to let DACA and DAPA programs proceed. The executive actions, announced in November and set to take effect this month were frozen by in February Texas District Court Judge Andrew S. Hanen. The plaintiffs, which include Texas and two dozen other states, argued that they would bear the burden of driver’s license and other costs associated with giving undocumented immigrants legal status.

Judge Hanen is expected to issue a formal ruling on the case soon. While it’s clear that he’s unlikely to rule in the administration’s favor, we don’t know which legal aspects of the plaintiff's case he might embrace. At least three separate issues of Obama’s immigration actions are being challenged, including executive power, adherence to rulemaking procedures and standing -- the right of the states to challenge federal immigration policies.

Whatever Hanen decides, the DOJ will likely more their appeal to the 5th Circuit. While that court is notoriously conservative, the administration is likely to get a more favorable three-person panel than they did for the injunction appeal. That’s because 5th Circuit Court judges rotate, and the DOJ is guaranteed another “shuffle” in the “deck” of judges.

“It will go to a different 3-judge panel. They’ll get dealt a new hand,” Charles Foster, chairman and founder of an eponymous global immigration law firm told the Latin Times in a phone interview. “[The DOJ] is going to have another 3-judge panel that will rule on the substance.”

Foster, who was one of Obama’s policy adviser in 2008, says that he’s “cautiously optimistic” that the DOJ will prevail in the case. He pointed out that Hanen hadn’t yet ruled on the substance of the case, and that his ruling could boil down to one on procedure. That could be resolved by the administration in a matter of months. However, he wasn’t willing to speculate about how long it might take for the entire legal process to move forward, especially if the case makes it to the Supreme Court.

“It’s not over until it’s over,” he said.

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