WASHINGTON — The federal judge in Texas who last month ruled that Obama's recent immigration executive actions are unconstitutional has delayed a decision on the Justice Department's request to keep the new actions in effect during the appeal.
The court logistics are somewhat complicated. On Feb. 23, the Justice Department asked U.S. District Court Judge Andrew Hanen to stay his Feb. 16 ruling that put President Obama's immigration on hold while the court decides whether the actions are constitutional.
Instead of deciding on that issue, Hanen on Monday wrote that he would first consider a request from the states challenging the Obama administration's actions — and won't make any other rulings in the meantime. In other words: He won't be making a ruling on the Justice Department's request to lift his ruling that stops the actions.
Hanen's order on Monday came in the wake of a notice by the Justice Department stating that if Hanen did not rule on its stay request by March 9, 2015, the Justice Department might go to the 5th Circuit of Appeals — asking the appeals court to step in and issue a stay of Hanen's ruling.
It was not immediately clear that Hanen's order would put off an attempt by Justice Department lawyers to take their stay request to the 5th Circuit Court of Appeals, but the order — particularly given Hanen's reference to "other pending motions" — would make it difficult for the Justice Department to make a case to the appeals court that their action is the only option for the federal government lawyers.
The Justice Department was reviewing the order on Monday evening.
The states' March 5 request that Hanen is considering is for discovery — or, exchange of potential evidence — related to a Justice Department advisory made in the case this month. The advisory dealt with treatment of people eligible for Deferred Action of Childhood Arrivals, originally implemented in 2012.
Obama's announcement in November about the new executive actions changed the "deferred action" periods (how long deportation is delayed) from two years to three years. In the March 3 advisory, the Justice Department noted that 100,000 people received three-year grants under the new executive actions. No new three-year deferrals, Justice Department lawyers noted, were granted after Hanen's ruling.
Although Justice Department lawyers described the two-year to three-year deferral change as not being one of the "substantive eligibility guidelines" changed in November 2014, the states responded on March 5 by stating that they found themselves "hard-pressed to reconcile Defendants' past representations with Defendants' actions as reported in their advisory."
The states' lawyers wrote, "Defendants had represented on several prior occasions that USCIS would not consider requests for deferred action under that memorandum until at least February 18, 2015." The Justice Department's advisory, however, suggests that it viewed the Feb. 18 date as marking only when it would begin implementing what it called the "substantive eligibility guidelines" changes.
Hanen took this new dispute — over the 100,000 people who received three-year deferrals since November — to push off a decision on the Justice Department's stay request "until it is clear that these matters, if true, do not impact the pending matters or any rulings previously made by this Court." Hanen set a hearing for March 19 on the states' request.
This article has been updated to include the Justice Department's review of the order.