Fifth Circuit schedules hearing in executive amnesty case

The United States Court of Appeals for the Fifth Circuit has issued an order that sets oral argument in Texas v. United States for April 17. This is the case in which Texas and other states challenge President Obama’s executive amnesty.

In district court proceedings, Judge Hanen temporarily enjoined the government from enforcing Obama’s program to grant lawful status to millions of illegal immigrants. The government has moved for a stay of that order, pending appeal.

The oral argument on April 17, for which two hours have been allocated, will pertain only to the government’s motion for a stay. As for the merits of the injunction, the Fifth Circuit’s order sets a briefing schedule and permits the filing of briefs by a number of amici, including Senators Cruz and Cornyn.

Meanwhile, Josh Blackman notices what he calls a “slight pivot” in the government’s legal argument in favor of staying Judge Hanen’s order:

Now, the government claims that [the executive order] is essential to national security, and that unless Judge Hanen’s order is put on hold, the government will be unable to secure the border and the homeland.

The essence of the government’s argument, as described by Blackman, is this:

In order to help Homeland Security agents quickly distinguish dangerous immigrants from those who pose no threat, the president had to grant. . .quasi-legal status to 5 million immigrants. Once the immigrants sign up. . .they will undergo background checks and receive a biometric ID, making it a lot easier for DHS agents to identify them.

Blackman dismisses this argument, which he deems a smokescreen. He’s probably right on the merits. However, the national security gambit may add a little weight to the government’s argument in favor of a stay, pending resolution of the merits.

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