The Supreme Court on Wednesday put off for almost a month any action on the Obama administration’s long-stalled 2014 immigration policy, and that may lead to added delay in a Texas federal court where a trial on the policy’s legality is due to be held — at some point.
More than six weeks ago, the administration asked the Justices to rehear the government’s plea for permission to enforce the broad policy to defer the deportation of upwards of four million undocumented immigrants. The Justices had split 4-to-4 on June 23, and that action upheld a lower court’s nationwide ban on enforcement, even though the Justices’ action was not a ruling on any of the legal and constitutional issues surrounding the policy.
Last Monday, the Court passed up a chance, in its final round of summer recess orders, to act on the rehearing request. Now, on Monday, the Court’s electronic docket shows that the request will not be considered until the Court’s first private Conference of the next Term — on September 26.
Meanwhile, in a status conference on Monday in Brownsville, Texas, of lawyers for the governSent and for the 26 states that sued to challenge the policy, the two sides told U.S. District Andrew S. Hanen that he should keep the case before him on hold until after the Supreme Court decides what to do about the government’s rehearing request.
This is the notation on Judge Hanen’s docket: “Agreement between parties that it would be appropriate for the Court to continue the stay until the Supreme Court rules on the United States petition for re-hearing and then allow the parties 30 days to discuss before coming back to the Court on the scheduling matters.”
Judge Hanen is handling the 26 states’ lawsuit against the 2014 policy. In a pre-trial order in February of last year, he blocked enforcement across the nation. He concluded that the challenging states are likely to win when the case goes to an actual trial. That enforcement ban was later upheld by the U.S. Court of Appeals for the Fifth Circuit and, as a result of the 4-to-4 tie among the Justices, by the Supreme Court.
However, the judge has since put all of the case before him on hold while he deals with his charge that Justice Department lawyers appearing in the case had misled him and the states about when the policy enforcement would begin. At the status conference he set for Monday, the judge and the lawyers on opposing sides were due to discuss the next steps to be taken, including making arrangements to hold the trial.
The government has planned to appeal the judge’s ethics violation order, but has not yet begun the formal process to do so. In the meantime, the government asked the Texas judge to keep the case before him on hold.
That was the issue that was discussed at Monday’s session, leading to disclosure that the two sides want no action taken in the case in Texas until after the Supreme Court makes up its mind on the government’s rehearing request.
If the Supreme Court should grant that request in the form submitted by administration lawyers, the case would actually be held on the Court’s docket without further action until a ninth Justices is on the bench. If no nominee is approved by the Senate by the end of this year, a new Justice may not be in place until February or March. Meanwhile, the case in Texas would not move toward the trial.
In that scenario, the fate of the Obama policy would fall to the next president who is elected on November 8, who will take office on January 20.
If, however, the Court were to refuse to schedule a rehearing, that denial could be known fairly soon after the Justices’ September 26 private conference. Such a denial would then allow the re-start of proceedings before Judge Hanen in Texas.
As of Wednesday evening, the judge had not approved the two sides’ agreement on a delay of the case, but since there is no dispute about that, the judge is likely to go along.
