The NY Times on “Running Out the Clock on Obama Immigration Plan,” and #SCOTUS Timing

October 13th, 2015

The day that the Obama administration opted not to seek a stay from the Supreme Court on the 5th Circuit’s decision in Texas v. United States–after some inexplicable dithering–I realized that by not urgently appealing the decision, Texas could effectively “run out the clock” on the Obama Administration. The ultimate decision would arrive, at the earliest, in June 2016–four months before the Presidential election. That would not leave enough time for the President to implement this policy. I speculated–and it was somewhat confirmed–that this decision was political, and there was a desire to make this a political issue for 2016, the immigrant community be damned in the interim. But now, the government is facing another, more pressing problem–it may not be argued until November 2016.

Today, on page A1, The New York Times published an article titled “In Courts, Running Out the Clock on Obama Immigration Plan.” With respect to timing, the article quotes me and John Elwood on how late the 5th Circuit could issue its decision, and still ensure that it will be resolved this term.

The circuit court must decide soon to give the administration the time for a final appeal to the Supreme Court.

“What is the point of no return?” said Josh Blackman, a law professor at the South Texas College of Law who filed an appeals court brief opposing the president’s executive actions. “As long as we get a decision by the end of October or beginning of November, the case could be heard by the Supreme Court this term.”

John P. Elwood, a lawyer at Vinson & Elkins who follows Supreme Court procedures closely, said the Obama administration might have a few more weeks than that — until late November — to be heard in the current term once the Fifth Circuit rules.

But lawyers for the State of Texas, whose lawsuit is seeking to stop Mr. Obama, will then have the right to seek an extension beyond the usual 30 days to file briefs, another delay that could get in the way of prompt Supreme Court consideration.

“The petition seems like it would have to be filed by Nov. 27 or 30, if Texas is being cooperative,” for the case to be hear in the current term, Mr. Elwood said.

Allow me to explain my math, based in part on the schedule in Obergefell.

  • 11/6/14 – Obergefell was decided by the 6th Circuit
  • 11/14/14 – The challengers filed the cert petitions in Obergefell v. HodgesTanco v. Haslam, and DeBoer v. Snyder. (Bourke v. Beshear was filed on 11/18).
  • 12/12/14 – A brief in favor of certiorari was filed by Ohio.
  • 12/21/14 – Replies were filed by Obergefell, and one day later by Bourke and Tanco.
  • 12/23/14 – It was scheduled to be distribued on the 1/9/15 conference.
  • 1/12/15 – After one relist, it was scheduled to be distributed on the 1/16/15 conference.
  • 1/16/15 – The petition was granted, and a compressed briefing schedule was issued.
  • 3/6/15 – The case was set for oral arguments on 4/28/15.
  • 4/28/15 – The case was argued on the penultimate day of the argument calendar.

So in other words, in order to get this case onto the calendar for the last day of arguments, everyone had to move super fast. The petitioners filed within 8 days. The states filed briefs in support of certiorari without seeking a delay, just in time so the Court could schedule it on 12/23 for the 1/9/15 conference. If the states had taken a few more days, it would have been kicked over till the new year, and would not have been distributed till a much later conference. If the case had been pushed forward anymore, it may not have been granted until after the 1/16 conference, and would not have been placed on the argument calendar for the OT 2014 term.

Based on this year’s case distribution schedule, in order to make it onto the January 8 conference–which would allow for one relist, and be granted on January 15–the petition would have to be distributed (at the latest) on December 22.  Assuming the SG waives his reply, or files one immediately,  Texas’s brief in opposition would have to be filed before December 22, though more likely on December 20 or 19 to give the SG time to reply. This would mean the SG’s cert petition would have to be filed on approximately November 20 (this is where I think John got the November 27 estimate from). Therefore, the decision would have to come from the 5th Circuit towards the middle of November. But all of this math assumes a 30 day extension is not granted. Assuming Texas does get its 30-day extension, the brief in opposition would not be filed until some point in late January, which would put us on a conference in February. Last year, all cases granted on or after January 23 were scheduled for argument during the following term.

With all respect to Texas–whom I filed a brief in support of–I don’t think they are in a hurry. They will almost certainly seek a 30-day extension, as virtually every party does when they have to file a brief with the Supreme Court. The Court grants those requests pro-forma. In King v. Burwell, Mike Carvin tried unsuccessfully to get the Court to deny the government’s request for an extension. The Court granted the extension. I think from an institutional perspective, the Solicitor General will be in a tough spot to oppose it, as this is an issue that comes up fairly often that affects all parties before the Court.

Now, all of this doesn’t mean a thing if #SCOTUS does whatever it wants. Bush v. Gore was resolved in a few weeks. In 2012, the Court argued Perry v. Perez (a Texas redistricting case) on January 9, and decided it on January 20.  When the Court wants to move fast, it can. But here, I think the equities weigh heavily against a super-expedited argument.The equities may favor Texas here. The United States didn’t seek a stay. That matters. They could’ve, but for whatever reason they didn’t. This signals to the 5th Circuit, and the Justices, that this isn’t that critical. Granting a 30-day extension for briefing, when the government didn’t even seek a stay, may seem like not a big deal. And, for an issue of such constitutional magnitude–indeed one that may go away after the next Presidential election–I can’t imagine the Justices would be in such a rush to hear it in May 2016, and resolve it by June 2016.