The Houston Chronicle quotes me and Steve Vladeck about the timing of the 5th Circuit’s decision, and the ultimate appeal to the Supreme Court.
Most observers expect the Fifth Circuit, considered one of the nation’s most conservative benches, to rule against the administration, which would then appeal its case to the Supreme Court. But if the panel does not decide on the case by mid-November, legal experts say it’s doubtful that justices would be able to consider it in their current term that runs through June.
“When you start getting to November, it’s difficult to have a case heard this year absent an expedited hearing from the Supreme Court,” said Josh Blackman, a constitutional law professor at South Texas College of Law who filed an amicus brief against Obama’s immigration plan on behalf of the Cato Institute, a libertarian think tank in Washington D.C. “I don’t think they can get this done. … The clock has run out.” …
If the Fifth Circuit issues a decision in late November or December, she said the government could still request the Supreme Court speed up the case by arguing that it is an issue of national significance.
“They do have the ability to squeeze in or add extra cases when they want to, but that’s exceptional and it’s rare,” Tumlin said.
But it has occurred, most notably in the 2000 presidential election, when the court took up the case and decided in George W. Bush’s favor in a matter of weeks.
“The clock is ticking, ” said Steve Vladeck, an American University Washington College of Law professor who specializes in the Supreme Court and has been following the Obama case in the lower courts.
He called the silence from the Fifth Circuit, which usually tries to issue opinions in such cases within 60 days, unusual. While it can technically take as long as it wants, he said the court typically decides relatively quickly on cases of national importance; moreover, two of the judges already are familiar with the key issues at hand.
“This delay is quite surprising,” he said.
If the case can get to the Supreme Court, Vladeck predicts the government has a strong chance of prevailing.
“The Supreme Court historically has been very skeptical in states having standing to sue the federal government,” he said.
The problem with arguing in December that this case is of “national significance” is that they didn’t seek a stay in May. If this was so important, they should’ve requested a stay. It will be difficult to make this argument compellingly before the Court.