There has been plenty of speculation about how the President Obama would respond to Judge Hanen’s order that blocks him from granting, via executive fiat, lawful status to millions illegal immigrants. Would the administration seek an expedited appeal or would it seek a stay of Hanen’s order? Might it do both? Or would Obama reverse his initial decision and simply defy the court order?
This afternoon the Justice Department announced that it would seek a stay of Judge Hanen’s order. It expects to file the necessary court papers by Monday. If granted, the stay would enable the Obama administration to begin processing applications from illegal immigrants for work permits, pending the resolution of its appeal.
Stays pending appeal are often granted, especially in highly controversial cases. However, it may not be easy for the Justice Department to get one in this case.
As Josh Blackman notes, to obtain a stay the government needs to show that some sort of irreparable harm will occur if the stay is not granted. But what is the irreparable injury where, as here, the court order simply keeps in place the status quo as it was before issuance of the executive amnesty?
If the government prevails on appeal, it can implement Obama’s amnesty in due course. But if a stay is granted and the amnesty wheels start rolling, it be difficult to unscramble the egg (to borrow Judge Hanen’s phrase).
If the government had sought an expedited appeal, it wouldn’t need to worry about showing irreparable harm. But even an expedited appeal would not produce an instant resolution. The appeals process might have taken several months to play out. A stay can be imposed with little delay if the government makes the required showing.
The administration isn’t interested in waiting for an authoritative ruling on its order, which mandates actions that Obama himself used to say are beyond his authority to take. The president wants to begin upsetting the status quo immediately.
That’s the tipoff that a stay should be denied.