The request, which you can read right here, is notable for the quick timetable it urges: It asks the court to act on the demand to lift the injunction within 14 days. This raises the possibility that the measures could, in fact, continue to go forward quite soon — while the underlying legal battle over them awaits resolution.
The DOJ argues, in fairly aggressive language, that Texas judge Andrew Hanen’s injunction was wrong on multiple levels. It contests Hanen’s claim that the executive actions cause “irreparable harm” to states, in the form of money spent on driver’s licenses to beneficiaries, arguing that such harm is “indirect” and “speculative” — the result of state driver’s license policies — and thus not sufficient to show “standing.” It argues that Hanen was wrong to conclude that the states’ lawsuit against the actions is likely to succeed on the merits, claiming Hanen misstated the policy basics underlying the “prosecutorial discretion” rationale that justifies these actions.
The DOJ also argues that halting Obama’s executive actions harms the public interest — and even national security:
An injunction…irreparably interferes with DHS’s ability to protect the Homeland and secure our borders. Deferred action helps immigration officials distinguish criminals and other high-priority aliens from aliens who are not priorities for removal and whose cases may additionally burden already backlogged immigration courts…DAPA and the expansion of DACA will advance important border-safety, public-safety and national-security goals in the public interest…the injunction also impairs the humanitarian interest of providing temporary relief for close family members of U.S. citizens and lawful permanent residents.
David Leopold, a prominent immigration attorney who backs Obama’s actions, explains the signficance this way:
“The administration turns Hanen’s ‘irreparable harm’ reasoning on its head, saying, in effect, ‘You want to talk about irreparable harm? Let’s talk about irreparable harm. This injunction hurts our national security and prevents us from enforcing immigration law in a sane manner.'”
Interestingly, the government’s brief calls for the 5th Circuit to, at the very least, limit the injunction by confining it just to Texas (the only state that has standing), or barring that, only to the 25 or so states that are suing:
The injunction issued by the district court is drastically overbroad. Twenty four states are not parties to this action, and a dozen states have participated as amici to oppose the plaintiff States’ challenge. Yet the court enjoined DHS from implementing the Guidance nationwide, barring implementation in States that do not oppose it and in States that support it.
In this, the government will be joined by at least a dozen states, including California and New York, that will be filing a brief insisting that the injunction should not be applied to them, arguing that they stand to benefit economically from people being allowed to work legally for a time, and thus that the injunction is harming them. This effort is being led by Washington state attorney general Bob Ferguson.
While it’s unclear whether the appeal for a partial lift of the injunction will work, if it does, it will mean that the executive actions could go forward in many parts of the country in as soon as two weeks.
It’s hard to predict what will come next. The 5th Circuit is a conservative court; a lot will depend on which judges hear the appeal. But at the very least, immigration advocates who were worried that the administration wasn’t prepared to fight the Texas ruling aggressively enough will now be pleased with what they’re seeing.
UPDATE: The states siding with the government have now filed their brief. There are fourteen of them. The crux of their argument:
States will benefit from the immigration directives, not suffer harm…there is overwhelming evidence that the immigration directives will benefit States…when immigrants are able to work legally — even for a limited time — their wages increase, they seek work compatible with their skill level, and they enhance their skills to obtain higher wages, all of which benefits State economies by increasing income and growing the tax base…the immigration directives will also benefit States by improving public safety.
UPDATE II: I should note that this effort by the states was spearheaded by Washington state attorney general Bob Ferguson.