By Josh Gerstein
November 23, 2015
The fate of much of President Barack Obama's legacy on immigration could hang on whether the Supreme Court grants a seemingly mundane and routinely granted request for a 30-day extension of a filing deadline.
An attorney in the Texas Attorney General's Office wrote to the Supreme Court clerk Monday, asking for an extension of 30 days to respond to the federal government's petition filed Friday, asking the justices to review the nationwide injunction a judge has imposed on the immigration executive actions Obama announced a year ago. The moves offered quasi-legal status and work permits to millions of undocumented immigrants who came to the U.S. as children or are parents of U.S. citizens, but the order issued by a federal court in February prevented those policies from ever taking effect.
The states' response to the petition for certiorari is currently due Dec. 21. Normally, a 30-day extension of that deadline is granted without any fuss. However, the court is rapidly approaching a point in mid-January when it usually announces the last cases to be heard in the current term. If the dispute over Obama's immigration actions is rolled forward to the fall term, which starts in October, it almost certainly would not be decided before the election, and the actions might never be implemented at all, even if the court upholds the authority of Obama or a future president to make such moves.
"If [an additional] 30 days were granted, it would pretty much put it well beyond the time they usually hear cases" in the current term, said Scott Nelson of Public Citizen.
Mid-ranking personnel in the Supreme Court clerk's office normally handle extension requests, but lawyers said an opposed request in circumstances such as these would likely be escalated to the justices.
Even if the extension is granted, the justices retain the power to set an accelerated briefing schedule in the case or to move late to order its argument in the current term, although such actions are rare.
A Justice Department spokesman said the federal government will oppose a 30-day delay at the high court, but seemed to leave the door open to a shorter extension.
"The case presents issues of national importance and the Department believes it should be considered expeditiously," spokesman Patrick Rodenbush said. "Therefore, we intend to oppose Texas’s request for a full 30-day extension.”
Keller's letter (posted here) goes on to argue that the Obama administration could have pressed the Supreme Court to get involved on an emergency basis earlier this year but passed up that chance.
"If petitioners' opposition stems from concern about the short-term consequences of the district court's preliminary injunction, petitioners could have sought a stay pending appeal," Keller wrote. "But after the district court and court of appeals months ago denied petitioners' motions to stay the preliminary injunction pending appeal, petitioners declined to seek a stay from this Court."
U.S. District Court Judge Andrew Hanen issued the injunction in February, barring Obama from moving forward with his Deferred Action for Parents of Americans program and an expansion of the Deferred Action for Childhood Arrivals program he announced in 2012. The 5th Circuit denied a stay of his decision in May and issued an opinion on Nov. 9 declining to overturn the injunction. Both of the appeals court rulings were 2-1, with the sole Democratic appointee on the panel dissenting.
For more information, go to: www.beverlyhillsimmigrationlaw.com