A string of bad luck for immigrants — and for the Obama Administration — might be coming to an end. On Thursday, a federal appeals court indicated that it is not bound by a previous decision that would make it very difficult for the administration to prevail in litigation challenging its immigration policies were this decision actually binding upon the court.
Judges Jerry Smith and Jennifer Elrod, both of whom were assigned to the three-judge panel hearing the request to stay Hanen’s decision, were among the six dissenters in that 2013 decision. They also formed the majority in a 2-1 decision refusing to stay Hanen’s order blocking the new immigration policies.
Smith and Elrod’s decision, however, focused on a narrow issue — whether to stay Hanen’s order pending further review by the Fifth Circuit. This July, the Fifth Circuit will decide whether to reverse Hanen’s order entirely, and it is likely that this matter will be heard by an entirely different panel of three judges. Nevertheless, the ordinary practice in a federal appeals court is that when a panel of judges publish a decision declaring a rule of law, that decision is binding upon future panels. So, under this ordinary rule, Judge Smith’s majority opinion denying a stay to the Obama administration would typically tie the hands of the new panel deciding whether to reverse Hanen’s order.
Except that, on Thursday, the Fifth Circuit sent a letter to attorneys in this case asking for briefing “addressing pertinent portions of the majority and dissenting opinions issued by” the panel that included Smith and Elrod. Significantly, however, the letter also advised the attorneys to be “mindful of the relationship between motions panels and merits panels as stated in” the court’s 1997 decision in Mattern v. Eastman Kodak Co.. That decision held that “a panel hearing the merits of an appeal may review a motions panel ruling, and overturn it where necessary,” and that “the merits panel must be especially vigilant where, as here, the issue is one of jurisdiction.”
So, to translate this somewhat arcane mix of legalize, the panel that will consider Hanen’s order in July is not bound by Smith and Elrod’s decision refusing to stay Hanen’s order. Indeed, this new panel even has the power to “overturn” Smith and Elrod’s decision.
That’s very good news for the the families hoping to benefit from Obama’s new policies, because Judge Smith’s opinion on behalf of himself and Judge Elrod could be simply devastating to the Obama administration’s legal arguments if it were binding on future panels, largely because it calls upon the appeals court to give an extraordinary degree of deference to Judge Hanen’s conclusions.
See here and here for the background. As the story notes, the panel for this appeal hasn’t been chosen yet – for all we know, Smith and/or Elrod could be on it – but the fact that this panel will not be bound by the previous panel’s ruling is good news. We could use some of that in this case. Daily Kos has more.