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Politicization of the Federal Courts: Comprehensive Immigration Reform and the American Judiciary

What appeared only a few months ago to have so much promise now seems at least another year away, if it's possible at all. The expansion of Deferred Action for Childhood Arrivals (" DACA Expansion") and the new Deferred Action for Parental Accountability (" DAPA"), which back in February of this year were put on hold by a U.S. District Judge in Texas hit yet another obstacle this past week. The U.S., which is being sued by twenty-six States for its seeking to implement DACA Expansion and DAPA via Executive Action rather than through the normal statutory-bill-passage or regulatory-notice-and-comment procedure, had appealed the U.S. District Judge's decision dated February 16, 2015 to the U.S. Court of Appeals for the Fifth Circuit ("Fifth Circuit"), which thereafter on May 26, 2015 upheld the U.S. District Judge's preliminary injunction pending completion of the overall case.

A noteworthy part about the Fifth Circuit's decision is its statement within the first paragraph of its decision wherein it asserts that the U.S. has l ittle likelihood of succeeding in the overall case, thereby justifying leaving the U.S. District Judge's preliminary injunction in place. The vote within the three-judge panel from the Fifth Circuit that heard the case was 2-1, with the majority being held by two judges appointed by Republican U.S. Presidents and with the dissenter having been appointed by current U.S. President Barack Obama, a Democrat. The U.S. still has some legal options left to try to have the U.S. District Judge's preliminary injunction lifted, but none of them will lead to such an outcome occurring quickly.

What will be more interesting than the Obama Administration's legal strategy from here is its political strategy, which necessarily includes its enforcement priorities. Although DACA Expansion and DAPA have hit significant hurdles to implementation, they are not the only cards in the Obama Administration's hand. Nevertheless, the Fifth Circuit's unwillingness to keep the U.S. Judiciary out of the political fray shows that whatever the Obama Administration's next move is, it is indeed likely to be the subject of federal-court litigation that will not be dismissed under the political-question doctrine.

Under the political-question doctrine, the Fifth Circuit could have held that the U.S. Judiciary is not the suitable forum for the immigration-related debate with which DACA Expansion and DAPA are intertwined. The political-question doctrine is applicable to the fray that the proposed Executive Actions did not create but to which it indeed added given that Comprehensive Immigration Reform ("CIR") has been in the news for years. For example, at the beginning of the year the U.S. Congress, both chambers of which have a majority of Republicans, pursued legislation not to fund the proposed DACA Expansion and DAPA and only to fund for a short period of time the U.S. Department of Homeland Security ("DHS"), which is the federal agency that would be responsible for implementing the proposed DACA Expansion and DAPA. Therefore, the U.S. Congress is not powerless if it does not agree with the Obama Administration's Executive Actions.

Nevertheless, instead of allowing the political debate on CIR to move forward between the U.S. President and the U.S. Congress, the Fifth Circuit chose to enter that political debate and consequently to embroil itself in the political fray. Moreover, the split along political lines among the judges involved in the case thus far portray the federal judiciary as little more than an extension of the political branches of the U.S. government as opposed to what the U.S. Judiciary is supposed to be, i.e., an independent co-equal branch that is not subject to politicization. Such apparent politicization has the potential of inflicting lasting and potentially irreversible damage to the U.S. Judiciary, which has always commanded its respect despite not being subjected to regular elections solely because of its perception among the public as not being politicized.

The political-question doctrine exists for that very reason: to maintain the respect the U.S. Judiciary has commanded for centuries. The decline in respect of the U.S. Judiciary based on its no longer refusing to enter the political fray will likely be the greatest casualty in the CIR war that is being waged, regardless of which side wins. The appearance of unfairness within the federal judiciary, this idea that the greatest factor in determining likelihood of success in litigation, more than the law itself, is which judge, and consequently that judge's political leanings, happens to have been assigned to the case, will be the natural result of the continued no-holds-barred political sparring, which was largely left to the U.S. President and the U.S. Congress but in which the U.S. Judiciary has shown it is more than willing to engage.