The panel has been announced for Friday’s arguments in “the immigration case,” Texas v. United States: Judges Smith, Elrod, and Higginson. Like the recent panel in Crane v. Johnson (No.14-10049, April 2, 2015), this panel draws from the major “wings” of the Court – a senior Reagan appointee, a recent Bush appointee (both from Texas) and the second-newest appointee by Obama.
The similarity of panel makeup suggests the potential for a similar result. Interestingly, while Judge Smith is a strong separation-of-powers conservative (consider his dissent in the en banc False Claims Act case of Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749 (5th Cir. 2001)) he is also a strong voice for judicial action when there is jurisdiction; for example, he has led the Court toward expanded pretrial oversight of district courts in opinions such as In re: Radmax. Judge Higginson, while new, has a record of thorough opinions that comport with the majority view of legal issues (consider his recent opinion in the False Claims Act case of United States ex rel. Shupe v. Cisco Systems, Inc., 759 F.3d 379 (5th Cir. 2014)). The panel will give the plaintiffs a full hearing but may well find problems with their standing theories.
At the risk of reading one tea leaf too many, it is worth noting that Judge Elrod dissented from the denial of en banc rehearing in Radmax, as well as a recent panel opinion that granted mandamus relief on a forum issue, In re Lloyd’s Register North America, Inc., No. 14-20554 (Feb. 24, 2015). The analogy between the Court’s mandamus jurisdiction and the justiciability issues in Texas v. United States is not powerful – and indeed, Judge Smith was on the opposite side of both matters from Judge Elrod – but it does suggest a healthy concern for judicial constraint.