The White House’s appellate strategy in response to Judge Hanen’s Executive Action injunction now begins to emerge. It appears the Administration’s Department of Justice will seek an emergency stay of Judge Hanen’s preliminary injunction issued in the late night hours of Monday February 16, 2015.
A request for emergency stay, which must first be filed before Judge Hanen, would be a request by the Administration to delay the enforcement of Judge Hanen’s own injunction while the Administration appeals the injunction before the Fifth Circuit Court of Appeals. Not surprising, it is very likely Judge Hanen will deny the request to stay his own injunction.
However, in that circumstance, the Administration will likely proceed to renew the request for emergency stay directly before the Fifth Circuit where it is more likely to be considered and, perhaps, granted.
If the Court of Appeals, which is headquartered in New Orleans, were to grant the emergency stay, the Administration would be free to begin accepting applications for expanded DACA and DAPA as previously scheduled until the Court of Appeals makes a final ruling on the validity of Judge Hanen’s injunction.
However, even if the request for emergency stay is ultimately denied by both Judge Hanen and the Court of Appeals, the Administration will still likely proceed with the appellate process seeking review and reversal of Judge Hanen’s Injunction under normal or expedited scheduling. In this circumstance, an appeal under expedited rules may take serveral weeks to months.
The Administration’s current plan was announced earlier today by the following tweet from the Department of Justice Spokesperson: