WashU Expert: Timing crucial to immigration appeal to Supreme Court

The Obama Administration announced Nov. 10 it will seek United States Supreme Court review of a ruling blocking President Barack Obama’s executive actions on immigration.

Steve Legomsky
Steve Legomsky

Timing is crucial, says an expert on immigration law at Washington University in St. Louis.

“The government has a strong case in this appeal and nothing to lose,” said Stephen H. Legomsky, JD, DPhil, the John S. Lehmann University Professor at Washington University School of Law.

Legomsky is former chief counsel of the U.S. Citizenship and Immigration Services, the Department of Homeland Security agency that would be charged with implementing Deferred Action for Parents of Americans (DAPA), and more recently senior counsel to the Secretary on immigration issues.

In between, he provided expert testimony to both the House and Senate judiciary committees on immigration. He is principal author of “Immigration and Refugee Law and Policy,” a required book for immigration courses in 185 law schools to-date.

“The problem is timing,” Legomsky said. “The long delay by the Court of Appeals means it is now a close call whether there will be enough time for the Supreme Court to issue a decision in this term, which lasts until next June. If the case gets held over to the next term, the clock will run out on the current administration.”

On Nov. 9, by a vote of 2-1, the U.S. Court of Appeals for the Fifth Circuit in New Orleans affirmed an order that bars the Obama Administration from implementing DAPA, which Legomsky said is a crucial part of its legacy.

“Under this policy, announced a year ago, the administration hopes to focus its limited immigration enforcement resources mainly on dangerous criminal offenders, recent arrivals and border security, rather than on those who are the parents of U.S. citizens or other lawful permanent residents,” Legomsky said.

“Those parents would receive something called ‘deferred action,’ a policy that has been used for decades to provide a temporary reprieve from deportation, and temporary work permits, for individuals whose removals are a low priority,” he said. “As a result of the Nov. 9 court order, DAPA will remain on hold.”

The outcome was not a surprise, Legomsky said. “The judge who handed down the original opinion and both of the judges who voted to affirm it are among the most conservative judges in the country, and they had signaled their feelings about DAPA long ago,” he said.

Legomsky noted three striking things about the opinion:

  • The Court of Appeals decision went even further than the district court had gone. It said the government may not implement the immigration program at all, even if it were to use the notice-and-comment procedure, a lengthy formal process.
  • The court’s dominant theme was that DAPA is illegal because it results in the beneficiaries being temporarily “lawfully present” for certain specific purposes — a result the court claims Congress has not authorized. “The problem is that Congress has expressly authorized exactly that,” Legomsky said.
    “The statute specifically allows the Secretary of Homeland Security to authorize periods of stay that will avoid unlawful presence. The judges were fully aware of that provision; the government and several amicus briefs all relied on it, and the dissent pointed it out as well. Like Judge (Andrew) Hanen, they simply chose to ignore it.”
  • “The dissent by Judge (Carolyn Dineen) King contained a paragraph that I
    have never before seen in a judicial opinion,” Legomsky said. “She publicly criticized
    her two colleagues on the panel for what she rightly called their ‘extended delay’ of a case that a previous panel of the court had agreed
    to expedite. They could have copied almost verbatim their own opinion addressing the same issues at an earlier phase of the case. There had already been mounting speculation that these
    two judges were purposely trying to run out the clock on the Obama
    Administration. This delay will only lend further fuel to that
    speculation.”

Editor’s note: Members of the media interested in interviewing Legomsky can reach him by email at legomsky@wustl.edu or by phone at 314-935-6469 (office) or 314-779-4713 (cell).

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