This post also appears on scotusblog.com
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 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.
Under the administration policy, nearly five million undocumented immigrants — many of them parents of young people who came to the country illegally in childhood — will be able to qualify for delayed deportation. That would not put them on a path to citizenship, but it would enable them to stay in the U.S. for perhaps five years, to get driver’s licenses, and to qualify for some other public benefits.
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.