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NEW ORLEANS — A federal appeals court based in New Orleans has become a prime destination for conservatives pursuing legal strategies to bolster gun rights, stop abortion or — as was the case Wednesday — block immigration.
The 5th U.S. Circuit Court of Appeals, one of 13 federal appellate courts around the nation, has 17 full-time judges. Twelve were appointed by Republican presidents, including six by former President Donald Trump.
Wednesday's arguments centered around an on-again-off-again effort to let local authorities in Texas arrest migrants suspected of illegally crossing the border. But that's just the latest immigration case to come before the 5th Circuit — and just the latest in a series of hot-button issues.
The court hears appeals of rulings from federal district courts in Texas, Louisiana and Mississippi. Conservative opposition to Democratic President Joe Biden's policies often follows a well-worn path that starts in federal district courts in Texas and western Louisiana, where Republican-appointed judges dominate. Win or lose, appeals of such cases go to the reliably conservative 5th Circuit.
The tactic that critics deride as “judge shopping” has led to a disputed new federal court policy for allotting cases. But it's hardly novel: During Trump's presidency, blue states often took their gripes to the 9th Circuit in San Francisco, which is known for its liberal bent. Democratic-led states and immigrant advocacy groups won big decisions there, including against Trump’s border wall and a policy that would have denied asylum to people who travel though another country without seeking protection there.
The panel that heard Wednesday's arguments included Biden-nominated Judge Irma Carrillo Ramirez and two Republican-picked judges: Priscilla Richman, who was nominated by former President George W. Bush, and Andrew Oldham, a Trump nominee and a former aide to Texas Gov. Greg Abbott.
Cases are typically heard by panels of three randomly assigned judges. But the full 17-member 5th Circuit court can vote to reconsider a panel's decision, maintaining conservatives' dominance. The Supreme Court has the final say, and although it it is also dominated by conservatives, it has tempered or reversed certain 5th Circuit decisions.
Other immigration cases
The Texas case decided this week was only one of the major immigration cases pitting the state's Republican leadership against the Biden administration. In one of the other cases, the appeals court reversed an order that required Texas to move a floating barrier on the Rio Grande.
During Biden’s first days in office, U.S. District Judge Drew Tipton, a Trump appointee, invalidated a 100-day pause on deportations and narrower priorities on whom to deport. The appeals court upheld Tipton’s decision, which was overturned last year in a 8-1 Supreme Court ruling.
Abortion and contraception
Even before the Supreme Court’s decision overturning Roe v. Wade, 5th Circuit judges had a history of chipping away at abortion rights. After that decision, a 5th Circuit panel issued a ruling tightening restrictions on mifepristone, the drug used in the nation's most common method of abortion. The Supreme Court put the ruling on hold while it considers the appeal, but if it stands, it would end mail-order access to the drug and enact other restrictions.
Just last week, a 5th Circuit panel ruled that Texas can keep requiring minors to get parental consent to obtain birth control without running afoul of a federally funded pregnancy health program. The Biden administration had argued that Title X preempts the Texas parental consent requirement.
Social media
Republicans in Missouri and Louisiana filed a lawsuit in northern Louisiana saying Biden administration efforts to get social media platforms to take down misinformation about COVID-19 and other topics amounted to illegal censorship. The district judge — a Trump nominee — issued a sweeping order blocking administration contacts with social media companies.
After a hearing last year in which members alluded to mobster movies while discussing the administration's alleged heavy-handedness (“That’s a really nice social media platform you got there. It’d be a shame if something happened to it,” Trump nominee Don Willett joked), a 5th Circuit panel narrowed the judge's ruling. But it still found that the Biden administration had probably brought unconstitutional pressure on the platforms and said officials can't attempt to “coerce or significantly encourage” changes in online content.
Even that narrowed ruling might not stand. A majority of Supreme Court justices hearing arguments recently seemed broadly skeptical of the states' arguments. A ruling from the high court is pending.
Guns
In cases still awaiting final Supreme Court decisions, the 5th Circuit struck down a 1994 ban on firearms for people who are legally required to stay away from their former spouses or partners. Supreme Court justices seemed likely to preserve the law, however, after hearing arguments in a pending case.
The high court is also weighing an appeal of a 5th Circuit ruling striking down a federal ban on bump stocks, which are devices that enable guns to fire more rapidly and mimic illegal automatic weapons.
Other issues
Conservatives have taken battles over former President Barack Obama's signature health care law, Biden's energy policy and a host of regulatory issues on a path through the 5th Circuit, with varying degrees of success.
There are no guarantees on outcomes. On Wednesday, for instance, Texas authorities defending the state's new migrant arrest law faced skeptical questioning from the appellate panel, which had two Republican appointees, about how enforcement would work.