On Tuesday, shortly after the 5th Circuit’s decision in Texas v. United States, I was invited to appear on the PBS News Hour. By chance, I was scheduled to be in D.C. on Wednesday, so I would be able to film it live in studio with Gwen Ifill, rather than in an undisclosed location in Houston. The focus of the discussion was supposed to be the path of the case to the Supreme Court. Alas, after I was invited, the Republican Debate happened, and several of the candidates talked about immigration. The segment morphed into one about the political ramifications of immigration reform–a topic that I am not particularly qualified to talk about. But by that point, I was already in studio, so too late.
The segment went well enough, and I think I got across two main points.
First, the question of whether the Supreme Court hears this case depends in large measure on how quickly the government files its petition for certiorari, and when Texas files its Brief in Opposition–and whether it gets an extension:
JOSH BLACKMAN: So, I think the question is not whether the Supreme Court will hear it, but when the Supreme Court will hear it. So, Marielena is correct.
GWEN IFILL: It’s definitely going to happen?
JOSH BLACKMAN: Oh, it’s definitely going to happen.
But it will either happen in May of 2016 [sic should be 2015] or November of 2016. And the variable is when the court is able to grant certiorari, when it’s able to grant review. And this is based first on when the U.S. government files their appeal and second when Texas files their response.
If the process too late, it’s very possible that this process will be stretched and kicked until next year, so it would not even be argued until there’s a new president in office.
Second, and more importantly, the administration had the opportunity to bring this case to the Supreme Court in May 2015 on a motion for a stay. The failure to do that virtually ensured that this would be decided at the earliest a few months before the 2016 election, and at the latest while the next President is in office.
And one point I make — I would like to make on the timing of the Supreme Court appeal, the Obama administration had a chance to appeal to the Supreme Court in May of 2016 [sic: should be 2015]. Their failure to do it basically ensured that this couldn’t be decided until the earliest of the summer before the election.
So whether it is in fact a priority for the Obama administration to appeal is not clear. They may be content to let this sit as a political issue and have Senator Clinton perhaps and the Republican candidate duke this out. There may be political elements here in delaying the appeal itself.
It was fun!
After the segment, Gwen was kind enough to photobomb my picture of the set.