SCOTUS to states on immigration appeal: 8 additional days to respond

Just as I predicted last month when the Obama administration appealed the 5th Circuit Court of Appeals immigration ruling to SCOTUS:

Of course, any one of the 26 “Red State” plaintiff’s that brought this case can request a delay for additional time to respond to the appeal, negating the administration’s timely filing.

Any delay could kick this case into the Court’s next term beginning in October 2016. The appeal would not be decided until after a new president takes office in January 2017. I fully expect the Red State respondents to play this delay gambit.

Texas, of course, requested for an additional 30 days to play this delay gambit. Surprisingly the Justices said “no” (we know what you are up to) and granted only an additional eight days, which means it is now more likely that the U.S. Supreme Court — if it grants the appeal —  will hear this case in late April and render a decision in late June.

Lyle Denniston of SCOTUSblog reports, States get a bit more time for immigration reply:

The Supreme Court on Tuesday granted twenty-six states an extra eight days to file their response to the Obama administration’s appeal in defense of its broad new immigration policy.  That extension — considerably less than the added thirty days the states had sought — makes it more likely that the case, United States v. Texas, will go before the Justices this Term.  (The extension order is noted on the case’s docket sheet.)

The Court did not release a separate order on the issue, but Supreme Court Clerk Scott Harris simply notified the lawyers in the case that the normal thirty days for a brief in opposition would be extended by eight days — until December 29.

The policy, announced just over a year ago, has not been put fully into effect because it has been blocked by temporary rulings of two lower federal courts — a trial judge in Brownsville, Texas, and the U.S. Court of Appeals for the Fifth Circuit.  The administration is eager to have the Justices hear and decide the case during the current Term, which runs until about late June.

The states opposed to the new delayed-deportation policy had asked the Court to give them twice the usual time to respond.  The administration, however, was opposed to that, but it told the Court that it would not oppose an eight-day extension, which is what the Court chose to grant.

The action by the Justices is not an agreement to review the case.  That will be decided only after the preliminary filings are in.

Solicitor General Donald B. Verrilli, Jr., had told the Court on November 24 that, if the states were given an extra eight days and they actually did meet that deadline, the government would be willing to consider forgoing its right to file a reply brief.  That would mean, Verrilli said, that the Court could consider the case at its private Conference, scheduled for January 15.  In turn, he added, the Court could decide the case this Term “in the ordinary course if the Court grants review.”

If the Court were to put the case on the January 15 list, and agree at that time to decide it, it could be heard in April and decided before the summer recess.  Verrilli had said that, if the schedule got delayed by a longer extension for the states’ filing, the case even if granted would probably not be heard until a special sitting in May.  The Court normally finishes hearing cases in a Term in April, and does not like to go beyond that schedule.

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The states had challenged the policy on both federal constitutional and statutory grounds, but the lower courts so far have only ruled on the statutory claims — under the Administrative Procedure Act.  Without a ruling on the states’ claim that administration aides had failed in their constitutional duty to enforce immigration laws, the Court would not be likely to consider the constitutional claim if it does take on the case.

In fact, the trial court and the 5th Circuit Court of Appeals have only ruled on the propriety of a temporary restraining order — which requires the showing of a harm and the likelihood of success on the merits of some claim at trial — the courts did not address the actual merits of the case.

Even if the U.S. Supreme Court decides to rule on the procedural question of leaving the restraining order in place or not, the case is going to be remanded back to the trial court for a trial on the merits. Regardless of who wins at the trial court, this case will be appealed all the way back up to the U.S. Supreme Court eventually in a couple of years.

The only question to be decided now is whether President Obama’s executive orders can go into effect during the pendency of the case, and the appeals to follow.