Obama holds off on immigration appeal to the Supreme Court

The Department of Justice on Wednesday said it will not make an emergency request to the Supreme Court to lift an order blocking President Obama’s executive action on immigration.

Instead, the administration will focus on the appeal of the injunction itself at the 5th Circuit, which is expected to proceed in July.

{mosads}”The Department has determined that it will not seek a stay from the Supreme Court,” Justice Department spokesman Patrick Rodenbush said.

Rodenbush said the “best way” to win the case is “to focus on the ongoing appeal on the merits of the preliminary injunction itself. That appeal has been proceeding on an expedited basis, and the 5th Circuit is expected to hear argument the week of July 6.”

An administration official said Wednesday that focusing on the merits of the case would give the federal government its best chance of success, but the decision also had to do with timing.

Even if the Supreme Court had allowed the president’s programs to move forward, it’s not clear the administration could have implemented them because of the ongoing fight in the lower courts.

The decision by DOJ means that a Texas federal judge’s order to temporarily block Obama’s controversial immigration executive orders will remain in place, at least for now.

On Tuesday, a panel on the 5th Circuit Court of Appeals ruled 2-1 against lifting that hold, with the majority opinion written by two Republican-appointed judges arguing that the “public interest favors maintenance of the injunction.”

Judges Jennifer Elrod and Jerry Smith said the stay should remain in effect because the states had made a compelling case that they would suffer harm if the programs went into effect. They also said granting stays of deportation to broad groups of immigrants goes beyond the president’s “prosecutorial discretion.”

“It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens,” the judges wrote. “Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.”

Obama in November announced new policies that would defer deportations for parents of children that are legal U.S. residents and allow them to apply for work permits. He also expanded a 2012 program for children who came to the U.S. illegally as children.

The same 5th Circuit is also reviewing a separate challenge on the injunction and will hear oral arguments in that case during the first full week of July. The administration will try to persuade the judges to lift the injunction during that argument.

The injunction stems from a larger suit filed by 26 states on whether Obama’s executive actions are constitutional.

Immigration activists had urged the government to appeal to the Supreme Court as soon as possible for a final decision. But Karen Tumlin with the National Immigration Law Center said that her organization made that call without specifying which avenue the Justice Department should take to bring the case to the high court.  

“We continue to call upon the Obama administration to move quickly and aggressively in defending the case because each day that passes without implementation of the important programs is a day that there are real costs to our communities and to our economy,” Tumlin told The Hill.

“Yesterday’s decision on simply an emergency stay is nowhere close to the last word on this subject.”

— This story was last updated at 6:41 p.m.