In Texas v. United States, the challenge to DAPA, the Fifth Circuit ruled against the federal government on their request for a stay on May 26, 2015 in a forty-page ruling. Virtually identical issues were presented to the court during oral argument on July 10, 2015. So where’s the decision? Ariane De Vogue writes at CNN that the “Legal fight over Obama’s immigration orders may outlast his presidency.” She quotes me in a few spots:
After losing in the district court, the administration appealed its case to a three judge panel on the U.S. Court of Appeals for the Fifth Circuit based out of New Orleans. The appeals court heard arguments in July — and both sides are getting impatient.
“Almost three months later, we are still waiting on a decision,” said Josh Blackman, an Associate Professor of Law at the South Texas College of Law. Blackman, working with the libertarian CATO Institute, has filed a brief in support of Texas and the other states who believe the President’s executive actions were an unprecedented expansion of executive power.
Blackmun [sic] supports comprehensive immigration reform, but he writes in the brief, “it is not, however, for the President to make such changes alone, in conflict with the laws passed by Congress, and in ways that go beyond constitutionally-authorized executive power.”
I didn’t say we “are getting impatient.” Indeed, quite the opposite. I suggested that the longer this process takes, the more likely this issue gets kicked until the October 2016 Term, and perhaps the entire case is mooted after the next presidential election.
“There is a distinct possibility that if this case is decided too late, there may not be enough time for the Supreme Court to argue and decide the inevitable appeal by June 2016,” said Blackman who added that if the case is kicked to the fall of 2016, the decision could come after the next presidential election.
Back in May I sketched out the timeline. If we get a decision in October or maybe November, the Court can hear the case this term without any sort of expedited briefing. But if the case is decided later in November, and/or Texas can obtain an extension of their deadline, absent expedited briefing, it will be virtually impossible to hear during this term.