Lawyers for the Obama administration said Wednesday that they were refocusing their legal strategy in an effort to restart the president's plan to grant temporary legal protection to millions of illegal immigrants.
The Justice Department said it would work on overturning a Texas judge's order blocking the Obama plan but give up on asking the U.S. Supreme Court to stay his ruling.
The administration had asked the U.S. 5th Circuit Court of Appeals in New Orleans to allow the program, which would grant three-year work permits to up to 5 million parents of citizens and other legal residents, to go on while the appeal over the judge's decision played out. But a three-judge panel from that court rejected the request Tuesday, saying in a 2-1 decision that the administration was unlikely to win the argument that the president had the legal authority to launch his program without approval from Congress.
The administration will not go to the Supreme Court to seek the stay, a Justice Department spokesman said.
"The Department of Justice is committed to taking steps that will resolve the immigration litigation as quickly as possible," spokesman Patrick Rodenbush said in a statement.
The president announced his executive actions on immigration last fall with major fanfare, and the ruling putting them on hold by U.S. District Judge Andrew S. Hanen in Texas caused a major outcry from immigration reform advocates.
But the administration's lawyers would have faced a high hurdle if they had appealed to the Supreme Court. The justices are usually unwilling to intervene in a pending legal battle and to change the status quo unless they are presented with an emergency.
To get a stay, Obama's lawyers would have to convince a majority of the court that the president's far-reaching order is legal – and that the government would suffer "irreparable harm" if the program were kept on hold for a few more months.
Hanen, who has been harshly critical of Obama's enforcement record on immigration, issued an order blocking the program in February. The case has divided the country into warring blocs of states. Twenty-six mostly Republican-led states, led by Texas, sued to block the program; another 14 states, plus the District of Columbia, have intervened on the side of the administration.
The 5th Circuit has agreed to speed up a hearing on the merits of Hanen's ruling; a hearing is set for July 6. The administration decided it was a better strategy to save its arguments for that case, Rodenbush said.
The Justice Department also could ask for a stay from the full circuit court in New Orleans; Rodenbush would not say whether that option was under consideration.
Stephen Legomsky, a professor at Washington University's law school and former chief lawyer at the U.S. Citizenship and Immigration Services, said he thinks the decision makes sense. Even if the stay is granted, he said in an email, immigrants would be left in a state of uncertainty while the legal arguments grind on, and that could discourage people from applying.