Taking at least some risk that time will grow too short in President Obama’s term in the White House to carry out his sweeping new policy on immigration, the Justice Department decided Wednesday that it would not now ask the Supreme Court for permission to put the program into effect.

The policy of delaying the deportation of some 4.3 million undocumented immigrants has been blocked nationwide by a federal judge in Texas, and the U.S. Court of Appeals for the Fifth Circuit refused on Tuesday to interfere with that order or even to narrow its reach.

The Justice Department was quoted by various news services as saying on Thursday that it remained committed to defending the policy, but added: “The department believes the best way to achieve this goal is to focus on the ongoing appeal on the merits of the preliminary injunction itself.  Although the department continues to disagree with the Fifth Circuit’s refusal to stay the district court’s preliminary injunction, the department has determined that it will not seek a stay from the Supreme Court.”

The prospect now is that the process in the courts will run on for at least several more months.  The dispute in court has not moved swiftly up to now in lower courts.

After twenty-six states sued the administration to block the new program, the Justice Department tried in both the trial court of U.S. District Judge Andrew S. Hanen of Brownsville, Texas, and in the Fifth Circuit to get quick action to allow it to go forward with the policy, neither court acted by the dates the department had suggested.

The case reached the Fifth Circuit in late February, after Judge Hanen imposed a nationwide, though temporary ban, on implementing the policy.  The government on March 12 asked the Fifth Circuit to lift the judge’s order, and urged that court to act within three weeks.  However, the appeals court did not hold a hearing until April 17, and then took five weeks to prepare its opinion leaving Judge Hanen’s order intact.

The situation now in the court of appeals is that the formal briefing on the validity of Judge Hanen’s order has just been completed, and a three-judge panel is scheduled to hold a hearing in the first week of July.  It seems unlikely that a final decision will emerge in fewer than several months.

President Obama’s term in the White House ends in January 2017.  Under normal schedules, the case would have to reach the Supreme Court by January of next year to be decided before that Term of the Court ends.  Even if the government were to win in the Supreme Court, there might not be sufficient time to put the policy into effect until a new administration takes office.

The legal reasoning that administration officials used in deciding not to go to the Supreme Court at this point is not known.  The Court is slated to finish its current Term in about another month; although the Justices could have acted on a government request during the summer recess, the short time remaining in the Term may have been a factor.  And officials may have also concluded that they did not have a strong chance of getting permission to begin implementing the policy, while it remained under review in the Fifth Circuit.

 

 

 

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, No plea now to the Court on immigration, SCOTUSblog (May. 27, 2015, 7:00 PM), https://www.scotusblog.com/2015/05/no-plea-now-to-the-court-on-immigration/