The 5th Circuit recently announced the panel that will hear the full appeal of U.S. District Judge Andrew Hanen’s order blocking DACA expansion and DAPA, the president’s deferred action programs that were announced last year as part of his immigration executive actions. The three-judge panel includes Jerry E. Smith, Jennifer Walker Elrod and Carol Dineen King. Smith was appointed by Ronald Reagan. Elrod was appointed by George W. Bush. King is a Carter appointee.

While it’s now a near certainty that this panel will side with Hanen and affirm his wrongheaded decision to block President Obama’s executive actions — in late May Smith and Elrod refused to lift the preliminary injunction Hanen had placed on DACA expansion and DAPA — the three judges would be wise to take a lesson from last week’s Supreme Court’s decisions on ObamaCare and gay marriage. The court made clear in King v. Burwell that political lawsuits die when they meet law, justice and common sense. And it taught in Obergefell v. Hodges that the Constitution belongs to everyone, regardless of race, religion, gender, sexual preference or nationality.


That’s an important lesson for Smith, Elrod and King.

Like King v. Burwell, the GOP’s Texas immigration lawsuit is a naked partisan challenge brought by Republican governors and attorneys general to target mixed-immigration status American families. In the case of ObamaCare the goal was to deprive Americans of subsidies to their healthcare premiums, exposing them to life-threatening illnesses and death due to lack of access to proper medical care. In the case Obama’s immigration executive actions, the Texas lawsuit is aimed at foiling any solution — even a temporary Band–Aid like deferred action — in aid of their draconian goal of mass deportation.

As with healthcare, the nation is badly in need of an overhaul of its immigration policy — a policy whose cornerstones were laid more than a half century ago to serve the needs of America in the 1960s, not America in the 21st century.

And, as with healthcare, same-sex marriage, fair housing, voting rights and a host of other critical social and economic issues, extremists within the American conservative movement, many of whom are comfortably ensconced in the Republican Party, remain, with few exceptions, virulently opposed to comprehensive immigration reform. Not one of the GOP presidential hopefuls has offered an immigration plan that will bring the visa system in line with our global economy and offer a safe, orderly and fair pathway to citizenship for the 11 million undocumented, aspiring Americans. Nor, unfortunately, is there any hope that the GOP controlled Congress will send Obama an immigration reform bill he can sign any time soon.

Which brings me back to the Texas immigration case and the lesson the 5th Circuit appeals court panel hopefully will take from the Supreme Court’s rulings last week. King upheld a critical pillar of ObamaCare. The ruling demonstrates what the Supreme Court can (and thankfully will) do when called upon to take sides in a partisan political fight: refuse to take the bait.

Importantly, King is a harbinger of things to come in the Texas immigration litigation. At its core, the GOP lawsuit relies on a judge’s willingness to credit political diatribe over the plain language of the president’s deferred action policy. The GOP’s ability to temporarily block DACA expansion and DAPA were the result of Hanen’s enthusiastic willingness to ignore what the guidance said in favor of what the GOP governors and attorneys general say it says. As Judge Stephen Higginson recently reminded his 5th Circuit colleagues, “On this record, as well as focusing below on the four corners off the November 20 [DACA expansion and DAPA guidance], I would say [the Obama administration] is adhering to law, not derogating from it.”

Nor should it be lost on the 5th Circuit judges that the U.S. Supreme Court has recognized the president’s broad discretion in immigration enforcement and not been timid about quashing unjust attempts by State authorities to deprive undocumented immigrants of due process — as it demonstrated Arizona v. U.S. when it defanged the infamous S.B. 1070 “show me your papers law.”

These last days in June have been historic: the Supreme Court upheld ObamaCare and gay marriage and, after a horrific hate crime in South Carolina, the Confederate flag is finally coming down across the South. Yet noticeably absent has been progress on immigration reform — there was no historical moment for the 11 million people who work, pay taxes, raise American families and long to contribute to the country they have struggled against all odds to embrace or for American businesses seeking to compete in a global economy.

Last week the Supreme Court made clear, as The New York Times’s Linda Greenhouse aptly put it, that it will not buy into a “cynically manufactured and meritless argument” and thus come to “be perceived as a partisan tool.” In the coming weeks the 5th Circuit court of appeals has the opportunity to follow the Supreme Court’s lead, dismiss the GOP’s partisan attack on DACA expansion and DAPA and reassure America that it too will resist being used as a partisan bludgeon. If it does, it may very well save the Supreme Court the trouble of fixing another mistake.


Leopold is former president of the American Immigration Lawyers Association.