Former RNLA law student leader and current South Texas College of Law Professor Josh Blackman has done a couple of fascinating blog posts regarding the “DAPA decision” halting President Obama’s Executive Order on Immigration. In one post Blackman asks: What is the Administration Thinking about its DAPA Appeal?! . Blackman writes:
I am really, really confused. For the last month or so, based on my reading of the transcript, I was fairly convinced Judge Hanen would issue a preliminary injunction, putting DAPA on hold. I have to imagine the Justice Department reached a similar conclusion. Even more so, I have to imagine that DOJ recognized that a federal district court could put enjoin DAPA even before a suit was filed, based on procedural or substantive grounds. From my research on Obamacare, teams were assembled before the law was even passed to prepare litigation strategies. So what happened?!
. . .
A top administration official said Wednesday it was unclear whether the Department of Justice would seek an emergency order that would allow the president’s immigration programs to go into effect while an appeal proceeds. A spokeswoman for the Justice Department said that no decision had been made on an emergency application to an appeals court, but she pledged to fight all challenges to the president’s actions.
If the administration files for an expedited appeal, followed by certiorari, it would effectively be impossible to resolve the issue before July. The case will be argued next term, with a decision as late as in June 2016. At that point, the administration is over. Why wouldn’t they go with the emergency stay?
More importantly, why was this decision not made weeks, if not months ago?
Blackman discusses theories including hubris but does not reach a conclusion.
One theory that Blackman does not discuss is this is another example of the politicizing of the Department of Justice. The Obama DOJ does not care about legal strategies, justice, or the rule of law; rather they care about public relations and using DOJ for political gain.
They may view this as another political issue to gin up their base much as they do voting, where they run publicity campaigns claiming civil rights and other violations but do little actual legal work.