The Fifth Circuit has announced the panel that will hear the Obama administration’s request to lift Judge Hanen’s preliminary injunction of the president’s Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). The panel consists of Judges Jerry Smith (Reagan appointee), Jennifer Elrod (George W. Bush appointee), and Stephen Higginson (Obama appointee).
This is not a good panel for the government. Elrod is a rising star conservative judge. Smith, for whom Tom Cotton clerked, is also conservative.
Friday’s hearing will not produce a ruling on the merits of Judge Hanen’s preliminary injunction, only on whether the injunction should be stayed until the merits are decided. The merits, though, are intertwined with the stay issue.
The big question is whether the same panel will decide the merits. I don’t see why not. There is a substantial overlap between the two cases, such that it would waste judicial resources to have a different panel deal with the merits.
However, the court has not designated a panel for the merits case, so we shall see.