PBS Frontline on Texas v. United States

November 12th, 2015

Yesterday, PBS Frontline published a thorough analysis of Texas v. United States, and its path to the Supreme Court. Here are some of my comments concerning the appeal process.

After the decision came out Monday, the Department of Justice announced that it would appeal the case “as quickly as possible.” Crow said the department has been preparing the appeal for months, and that it could come within days.

The 26 states involved in the suit will then have 30 days to respond to the appeal — but they can also seek an extension of another 30 days, said Josh Blackman, a law professor at South Texas College of Law, who filed an amicus brief supporting the states. The Justice Department is sure to oppose the extension, but Blackman said its chances of winning that fight are slim: “I can’t find any instance where the court denied a 30-day extension. Generally speaking, they are automatic.”

Once the states submit their response, the Supreme Court usually gives itself about two weeks to review a case, and then the justices convene to decide whether to hear it, said Blackman.

In past years, cases considered by the court before Jan. 15 are typically heard during its current term, which ends in June; cases that come later are heard in the next term, which begins in October — too late for the Obama administration to complete the months-long work of implementing the policy.

Blackman did the math: If the Justice Department appeals by Nov. 20, the states would have at least until Dec. 20 to file a brief. If they are granted the normal 30-day extension, that takes them to the end of January. That would push the appeal past the crucial mid-January inflection point.

Even then, though, the Supreme Court could still choose to hear the case this term, if the justices consider it urgent enough. But they may not be motivated to hurry the question, according to Blackman.

At issue is a “very serious separation of powers issue,” he noted, one that would require the court to rule on how far a president’s power for executive action can go — an area of law that he said has been grey for decades. The court has considered such issues before, Blackman said, but its general policy has tended against making bigger decisions than it strictly has to.

“I don’t think they’ll be rushed to resolve such a serious issue,” said Blackman, especially since “this case may go away entirely with the next presidential election if a Republican becomes president.”

(As an aside, I almost hit the public media trifecta. PBS Frontline blog, PBS Newshour TV, and NPR Morning Edition. Alas, although I recorded a segment for the last one Tuesday before the debate, I was bumped because of Donald Trump’s comments at the debate.).