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Prompt appeal due on immigration policy

Moving to defend its new immigration policy promptly in the Supreme Court, the Obama administration plans to file its appeal papers by the end of next week, it is understood.  That will be less than two weeks after a federal appeals court blocked enforcement of the year-0ld plan to delay deportation of more than four million undocumented immigrants — parents of young people who already are being allowed to remain in the U.S., at least temporarily.

For the case to be heard and decided in the current Term, there can be no significant delays in the unfolding of the Court’s normal process.  Ordinarily, if a case is not granted by the end of January — less than three months from now — there would not be time for it to be handled in the usual way, with a decision by late June. It ordinarily takes more than one hundred days for briefs to be filed after a case is granted.  The twenty-six states that challenged the policy, so far successfully, could attempt to slow the case down.

The administration is eager to have the legality of its policy settled before the Justices recess for the summer, so that federal agencies can provide the benefits to at least some of the eligible immigrants — a right to remain in the U.S. temporarily, a right to get a job, and access to some public benefits such as getting a driver’s license.  The election next November will choose a replacement for President Barack Obama, but he will serve until January 20, 2017, so there could be several months of active enforcement of the policy if the Court upholds it.

The current plan is for the government to file a petition for review next Thursday or Friday.  The states opposing the policy do have the option, under normal procedures, to ask for more time to file their initial brief in response.  Ordinarily, a response is due within thirty days.

Because that would risk delaying the case, administration lawyers will try to head it off first by considering a plea to “friends of the Court” on its side to file their supporting briefs early, perhaps within twenty days after the U.S. petition, instead of the usual thirty days.  That would be an attempt to send a strong signal of the government’s desire for dispatch.

If, however, the states do get an extension of time, with the prospect that the case might not be ready until the Court’s next Term, government lawyers might then consider asking the Court formally to expedite the schedule, to assure a final ruling by Term’s end.

The Court does have full control over its scheduling, and it can make differing arrangements if it decides that an issue is sufficiently important that it should be moved along.  It has done so in the past, although it is not routine.

When the government files its challenge to the Fifth Circuit’s delay order, it is expected to raise at least three issues on which it lost in that appeals court:

First, did the twenty-six states have a right to sue the federal government to block the plan, if they cannot prove that they actually will suffer a specific injury from the change in immigration policy?  The Fifth Circuit and a federal trial judge both found that at least the state of Texas will be injured, because those getting delayed deportation would file in large numbers for driver’s licenses, costing the state millions in administrative costs.  It takes only one suing party to establish “standing” for others to be allowed to join in a lawsuit.

Second, did the government illegally fail to propose the policy and, before finalizing it, give the public notice of its plan and a chance to comment on it, a requirement under the Administrative Procedure Act?  Both lower courts said that the challenging states would ultimately be able to prove such a violation.

Third, did the government use powers to alter immigration policy without being given authority to do so — another claim under the Administrative Procedure Act?  The federal trial judge did not rule on that issue, but the Fifth Circuit did, as an alternative basis for blocking enforcement, concluding that the new policy probably would be shown to have exceeded the authority of the executive branch.

Although the states, in their lawsuit, had also claimed that the new policy was unconstitutional, on the theory that President Obama failed to “take care that the laws be faithfully executed” (a duty of the president under Article II), neither the Fifth Circuit nor the federal trial judge had decided that question, so it would not be before the Court in the first instance.

The Court still has room in its March and April calendars for an oral argument on the case, if it is granted review promptly.

Recommended Citation: Lyle Denniston, Prompt appeal due on immigration policy, SCOTUSblog (Nov. 13, 2015, 5:45 PM),