Texas has filed a complaint, challenging the legality of the President’s executive order on immigration (DAPA). They have also recently filed a motion for preliminary injunction. Let’s assume a PI is granted, enjoining the administration from implementing DAPA. (I’ll stress that Texas asked for the injunction to apply “nationwide,” so the DOJ cannot pull the trick they did with Obamacare, arguing that Judge Vinson’s order only applied in Florida).
At that point, there would be an immediate appeal to the 5th Circuit. Taking a shot in the dark here, but I imagine most three-judge panels of the 5th Circuit would likely agree with the district court, and the en banc 5th Circuit would also probably concur.
For timing, let’s make up some numbers, erring on the side of speed. The District Court grants the preliminary injunction in March 2015. The United States appeals to the 5th Circuit seeking a stay, and it issues a denial of a stay in August 2015.
Then what? Two steps. First, the SG would file for an emergency stay to the Court seeking a stay of the preliminary injunction. Second the SG would file a petition for certiorari to review the 5th Circuit’s decision to deny the preliminary injunction. Let’s do the cert petition first. If the cert petition is filed in October or November, the case would probably be argued in March 2016 with a decision by June 2016. Back to the emergency stay.
Emergency appeals for a motion to stay are generally not argued. I suppose the Court could request expedited arguments, especially if a cert petition is coming down the pike. But if the Court wants to grant cert, it won’t let the policy go into effect, only to potentially stop it a few moths later. But in either event, this issue is not resolved by the Supreme Court till June 2016. By this point, we will be four months from a Presidential election. The policy could probably not be implemented in such a short time until the changeover of administrations. People won’t be able to apply in this short window. Or, Congress may pass a new law in the interim beforehand, mooting the issue.
In sum, the preliminary injunction is the name of the game. If it is granted, the policy would likely never go into effect. If it is denied, the policy will be fully implemented before it ever gets to the Supreme Court. And, as President Obama reminded us, no future administration will be able to reverse it.