Chances that injunction preventing immigration orders being implemented will be overturned are slim

The Department of Justice is appealing a decision by a Texas circuit court judge that granted an injunction preventing implementation of the president's executive orders on immigration. The appeal, to the 5th Circuit Court of Appeals, will determine whether the injunction can be lifted while the matter is before the courts.

Bad news for the president; the 5th circuit announced the names of the 3 judges who will hear the DoJ brief - two Republicans and one Democrat.

The 5th Circuit U.S. Court of Appeals announced Monday that the three-judge panel scheduled to hear arguments on the Justice Department's request for a stay of an injunction against Obama's immigration actions will consist of Judges Jerry Smith, Jennifer Walker Elrod and Stephen Higginson. Smith was appointed by President Ronald Reagan, Elrod by President George W. Bush and Higginson by Obama.

Smith is the best known of the trio. During oral argument on a health care related case in 2012, he ordered a Justice Department lawyer to do what critics described as a homework assignment: produce a three-page paper explaining whether the courts had the authority to determine whether laws were constitutional.

Smith was prompted to give the unusual instructions after Obama said, amidst debate over the constitutionality of his signature health care reform law, that it would be "unprecedented" for the Supreme Court to strike down a law passed by Congress. Obama later clarified his remarks to say he was referring to the modern era and to laws where Congress was claiming power to regulate an economic activity. (The Supreme Court ultimately upheld the individual mandate in the health care law, 5-4.)

The split on the appellate panel is consistent with the overall lean of the 5th Circuit, which is considered the country's most conservative federal appeals court. Its active Republican-appointed judges outnumber Democrats, 2-1.

The panel is set to hear two hours of oral argument Friday morning in New Orleans on the issue of whether to stay a district court judge's injunction from February blocking Obama's efforts to offer deferred deportation and work permits to millions more undocumented immigrants.

The same three judges are unlikely to make the ultimate decision on the legal merits of the lower court judge's ruling. Instead, the current panel is assigned to wrestle with the immediate question of whether the injunction should remain in effect while an expedited appeal goes forward.

If the appeal fails, the case will be brought before the entire 5th circuit bench - where Republicans own a 2-1 advantage. After that, it's on the Supreme Court no matter which side prevails.

As I've mentioned previously, this is not about the constitutionality of the president's executive orders. The district judge in Texas ruled that the administration violated administrative law by not publishing the rules and allowing the required time for commenting. Most observers believe this tack by the plaintiffs has a far better chance of success than challenging the orders based solely on Constitutional questions.

It seems likely that, given the conservative make up of the 5th circuit, that the administration will be forced to take the case all the way to the Supreme Court. It is likely that we won't know until the fall of 2016 whether or not the immigration orders are valid.

The Department of Justice is appealing a decision by a Texas circuit court judge that granted an injunction preventing implementation of the president's executive orders on immigration. The appeal, to the 5th Circuit Court of Appeals, will determine whether the injunction can be lifted while the matter is before the courts.

Bad news for the president; the 5th circuit announced the names of the 3 judges who will hear the DoJ brief - two Republicans and one Democrat.

The 5th Circuit U.S. Court of Appeals announced Monday that the three-judge panel scheduled to hear arguments on the Justice Department's request for a stay of an injunction against Obama's immigration actions will consist of Judges Jerry Smith, Jennifer Walker Elrod and Stephen Higginson. Smith was appointed by President Ronald Reagan, Elrod by President George W. Bush and Higginson by Obama.

Smith is the best known of the trio. During oral argument on a health care related case in 2012, he ordered a Justice Department lawyer to do what critics described as a homework assignment: produce a three-page paper explaining whether the courts had the authority to determine whether laws were constitutional.

Smith was prompted to give the unusual instructions after Obama said, amidst debate over the constitutionality of his signature health care reform law, that it would be "unprecedented" for the Supreme Court to strike down a law passed by Congress. Obama later clarified his remarks to say he was referring to the modern era and to laws where Congress was claiming power to regulate an economic activity. (The Supreme Court ultimately upheld the individual mandate in the health care law, 5-4.)

The split on the appellate panel is consistent with the overall lean of the 5th Circuit, which is considered the country's most conservative federal appeals court. Its active Republican-appointed judges outnumber Democrats, 2-1.

The panel is set to hear two hours of oral argument Friday morning in New Orleans on the issue of whether to stay a district court judge's injunction from February blocking Obama's efforts to offer deferred deportation and work permits to millions more undocumented immigrants.

The same three judges are unlikely to make the ultimate decision on the legal merits of the lower court judge's ruling. Instead, the current panel is assigned to wrestle with the immediate question of whether the injunction should remain in effect while an expedited appeal goes forward.

If the appeal fails, the case will be brought before the entire 5th circuit bench - where Republicans own a 2-1 advantage. After that, it's on the Supreme Court no matter which side prevails.

As I've mentioned previously, this is not about the constitutionality of the president's executive orders. The district judge in Texas ruled that the administration violated administrative law by not publishing the rules and allowing the required time for commenting. Most observers believe this tack by the plaintiffs has a far better chance of success than challenging the orders based solely on Constitutional questions.

It seems likely that, given the conservative make up of the 5th circuit, that the administration will be forced to take the case all the way to the Supreme Court. It is likely that we won't know until the fall of 2016 whether or not the immigration orders are valid.