This post also appears on scotusblog.com.
Lawyers for the twenty-six states that challenged President Barack Obama’s broad policy to delay the deportation of millions of undocumented immigrants asked the Supreme Court on Monday to give them more time to answer the government’s appeal. Delay has the potential to slow down a case that U.S. officials very much want decided during the Court’s current Term.
Texas Solicitor General Scott A. Keller wrote to the Court asking permission to file the states’ response on January 20, thirty days after it would have been due under the normal schedule. Keller cited a long list of other legal tasks faced by lawyers in the case, and he suggested that the government had not taken the steps that it could have to have moved the case along at earlier stages.
Justice Department spokesman Patrick Rodenbush said “we intend to oppose Texas’s request for a full 30-day extension,” adding that the government believes the case “should be considered expeditiously.” His remark at least implied that the government might suggest something less than a thirty-day extension.
Normally, if the Court has not acted by the end of January to grant review of a case, its chances of being briefed, argued, and decided in that Term are significantly diminished. If Texas is granted the extension, that would make it difficult for the Court to get the remaining filings in hand and meet the usual timeline for a case to be heard in April — usually, the last month for oral arguments.
Even if the request is granted, the government has a number of options it could attempt to try to ensure that the case gets moved along to a decision before the Term ends, likely in late June. It could ask the Court to put the case on an expedited schedule, before it is granted and after. And it could encourage those who support its side to rush their filings of amicus briefs.
Moreover, if the Court did agree to hear the case, and deemed it sufficiently important to speed up consideration, it could schedule oral argument after April, although it does not like to do so.
Normally, a request for more time to answer a new case is granted routinely by the Court’s Clerk, but if it is opposed — as is the case this time — the opposing party can ask that a Justice or the full Court act on the plea. The Court has complete discretion as to how it handles such matters.
The deferred deportation policy was announced a year ago, but has never been put into full effect because of the court battles against it by the twenty-six states. Both a federal judge in Brownsville, Texas, and the U.S. Court of Appeals for the Fifth Circuit have ruled that the challengers are ultimately likely to win on at least some legal points in their opposition.
If the case were not granted and decided by the Court in the current Term, it would go over until the next Term, which begins in October 2016, and might not be decided before a new president, elected in November 2016, takes office in January 2017.
The Obama administration wants the case resolved in the current Term so that it can at least begin to extend some of the benefits of the policy to families of immigrants — assuming that the Court had upheld it. It also would like to have the dispute resolved during the Obama administration.
A new president, if opposed to the policy, would have the option of undoing it by simply ordering aides to withdraw the guidelines announced last November on how the delayed deportation plan was to work.
