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Time for the Fifth Circuit to Rule

It’s been nearly a year since President Obama announced his major executive action on immigration, which would permit certain parents of U.S. citizens and other lawful residents to request deferred deportation. It’s been almost five months since the program was supposed to go into effect. There are an estimated 5.5 million people who would be affected by the program. Yet there’s been no resolution for these families. The president’s program remains stalled while questions about its legality work their way through the courts.

And while there shouldn’t be any question about the legality of the president’s actions, it seems clear that it’s going to have to be the Supreme Court that ultimately says so. But the Supreme Court can’t act until the U.S. Court of Appeals for the Fifth Circuit issues its decision in the case. It’s long past time for that court to have ruled.

Back in May, the Fifth Circuit, by a 2-1 vote, refused to put on hold a district judge’s decision temporarily halting the implementation of the President’s actions, which is often what happens when a lower court makes such a big decision. As a result, the president’s executive actions have yet to go into effect. That Fifth Circuit ruling back in May wasn’t formally a decision on the merits, that is, a decision on whether the district court’s opinion concluding the program was likely unlawful was right, but the majority opinion discussed the merits of the case enough to suggest that it agreed with the district court. So the writing seemed to be on the wall when the Fifth Circuit announced that the two judges who voted against the administration in May would be hearing the appeal on the merits in July. And that July oral argument only seemed to confirm what most observers had already suspected: the Fifth Circuit will likely be issuing another 2-1 decision against the administration. Yet more than three months later the country, not to mention all of the families that would be affected by the president’s executive action, are still waiting for that decision. The delay is almost as inexplicable as it is problematic.

It’s inexplicable because the court surely could have issued an opinion by now. The Fifth Circuit has said it “attempts to reach a decision within 60 days after” oral argument, and in 2014, it met that goal, with the median time between oral argument and opinion in civil cases just 1.8 months. To be sure, even if this case is more complicated than many the Fifth Circuit hears, there can be no doubt that two of the judges on the panel were very familiar with the issues in the case well before oral argument. After all, they wrote the opinion that discussed them back in May. And the Fifth Circuit has already recognized that the case is an important one that should be resolved as expeditiously as possible; that’s why it expedited the parties’ briefing in the case.

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