The Volokh Conspiracy
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A timing battle on the Deferred Action for Parents of Americans illegal alien non-deportation case
Some usually obscure Supreme Court procedural rules are suddenly hitting the news. As Prof. Josh Blackman and Cato's Ilya Shapiro write at the Federalist,
On November 20, 2014, exactly a year before the government's latest filing, President Obama announced Deferred Action for Parents of Americans (DAPA). This policy purports to rely on "prosecutorial discretion" not just to prioritize the deportation of felons over families-nobody challenges that authority—but to systematically convey deferred status to millions of aliens in a formal way that grants work authorization and other benefits. Texas and 25 other states filed suit, and Judge Andrew Hanen temporarily enjoined DAPA in February. DHS simply had not gone through the proper notice-and-comment procedures for changing its rules.
The U.S. Court of Appeals for the 5th Circuit upheld the district court decision, and now the Justice Department is asking the Supreme Court to review the case—something the court would almost certainly do, given that a major executive branch policy has been struck down. But when would the court hear the case, and hand down a decision?
The states have asked for a 30-day extension on their response, so that it would be due Jan. 20; such extension requests are routinely granted. That would mean that any grant of review wouldn't happen until February, which would normally mean that the case itself won't be heard until Fall 2016, and a decision would be handed down in 2017. (The last regularly scheduled oral arguments of the term are in April, and there would need to be time for briefing the case; and while the court could schedule a special May sitting for the case, those are rare, and the court might be reluctant to write the opinions in such an important case in just a month and a half.)
But the solicitor general is asking that the extension be denied, so the court can decide in January whether to grant review, and thus possibly schedule it for April, with a decision to be handed down by late June or early July 2016. And naturally the timing might have an effect (possibly a complicated effect) on the election.
In any event, Blackman & Shapiro argue that the court should grant the states' request, which will also give the justices more time to decide the case (since even an April hearing would leave them with only a couple of months to work on the opinions). Lyle Denniston (SCOTUSblog) has a neutral account. And I'd be glad to link to an argument in favor of quick review, when one appears (as I'm sure it will). I'm not sure myself what the right answer is, though I'm certainly open to the pro-quick-review position. [UPDATE: Here's one such argument, from Prof. Marty Lederman (Balkinization).]
UPDATE: Here's the argument from the just-filed letter from the Solicitor General opposing the extension of time for the states' brief:
The petition in this case seeks review of a preliminary injunction, of nationwide scope, entered against the Secretary of Homeland Security and other federal officials. As detailed in the petition, the injunction prevents the government from taking any steps to further an immigration policy of exceeding importance to federal law enforcement, to the many States that appeared as amici supporting the government in the court of appeals, and to millions of families with longstanding and close connections to this country. The policy was first announced on November 20, 2014, and was enjoined before the principal provisions became effective. If the Court were to grant the petition, but set review for next Term, it is possible that a decision on the merits would not be issued until June 2017, over two-and-half years after the policy was first announced. The effect of such a delay would be to prolong for an additional year the disruption of federal immigration policy and the irreparable harm of denial of work authorization and other protections to millions of people who would be eligible for those protections if the policy is upheld.
The government has endeavored to ensure prompt resolution of this case and moved expeditiously at every stage. The initial preliminary-injunction proceedings in district court were completed by February 16, 2015, less than two-and-a-half months after the States' complaint was filed. The government promptly filed motions for a stay of the preliminary injunction in both the district court and the court of appeals, both of which were denied. The government also filed a motion to expedite the appeal, which the court of appeals granted. And the government filed its petition for a writ of certiorari just 11 days after the court of appeals' decision. We respectfully submit that state respondents do not need a full 60 days—substantially more time than they sought and were granted for their merits brief in the court of appeals—to file their brief in opposition.
State respondents base their extension request solely on the ground that some of their counsel have deadlines in other matters. But under the schedule proposed by the government, counsel of record will have approximately three weeks after his oral argument in this Court to review the draft that his office—or one of the other 25 state offices listed as counsel on state respondents' briefing below—has prepared. That amount of time should be more than sufficient. The issues presented in the petition have already been extensively developed in the briefing and opinions below and are thus familiar to counsel. And because the government has consented to the filing of amicus briefs in support of the petition only if they are filed before December 4, 2015, counsel should receive such briefs 25 days before the brief in opposition would be due.
Particularly given the consequences that would attend delayed consideration of this case, state respondents have not advanced sufficient justification for denying this Court the ability to consider the petition at a time when unexpedited review this Term would still be possible. In opposing state respondents' extension request, the government is seeking nothing more than a schedule that more closely tracks the default schedule set forth in this Court's rules. The exigencies of the situation and the need to preserve the possibility of prompt review make that appropriate, irrespective of the absence of a request that this Court stay the preliminary injunction pending certiorari review. We note, however, that should state respondents' request for a 30-day extension be granted, we anticipate filing a motion for expedition and a May argument session to permit the case to be heard this Term.