On Friday the Solicitor General filed his petition for certiorari in United States v. Texas. Monday morning, Texas filed a letter requesting a 30-day extension to file its brief in opposition. Tuesday morning (after some last-minute scrambling), Ilya and I published our Op-Ed on The Federalist, explaining what Texas asked for, and anticipating whether the SG would formally oppose the extension. Tuesday evening (while I was on the flight home to New York), the Solicitor General filed a 2-page letter with the Court, formally opposing the extension, and in the alternative, noting that if it is granted, he will request expedited arguments in May. The Court will very likely rule on the issue by Wednesday.
The Solicitor General’s letter is a fascinating study in appellate procedure and advocacy.
First, the letter explains that the case should be heard “this Term”:
The government respectfully opposes state respondents’ request for a 30-day extension, to and including January 20, 2016, of the time to file a brief in opposition in the above-captioned case. A filing on the proposed date would preclude the Court, in the absence of unusual expedition, from deciding to hear the case this Term.
The SG does offer a compromise–instead of 30 days, he’ll concede to 8 days, and waive the government’s right to file a reply. Because this will get the case on the Court’s January 15, 2016 conference, which would allow the Court to decide the case “in the ordinary course.”
The government would, however, consent to an 8-day extension, to and including December 29, 2015, provided that the brief in opposition were physically on file with the Court on that date. A filing on that schedule, in conjunction with the government’s willingness to forgo its right to file a reply before the case is distributed, would allow the Court to consider the petition at its January 15, 2016 Conference, thereby enabling the case to be decided this Term in the ordinary course if the Court grants review.
I was trying to think in our article of describing the Courts the way the Court usually does business. “Ordinary course” is a good way of describing it. The SG also refers to the Court’s “default schedule”
In opposing state respondents’ extension request, the government is seeking nothing more than a schedule that more closely tracks the default schedule set forth in this Court’s rules.
That’s also a helpful way of describing it.
But why is this case so important to hear this term?
The policy was first announced on November 20, 2014, and was enjoined before the principal provisions became effective. If the Court were to grant the petition, but set review for next Term, it is possible that a decision on the merits would not be issued until June 2017, over two-and-half years after the policy was first announced.
This offers more meaning to the phrase “ordinary course” and “default schedule”–a big case argued in October won’t be resolved till June.
Next, the government explains that it moved “expeditiously at every stage.”
The government has endeavored to ensure prompt resolution of this case and moved expeditiously at every stage. The initial preliminary-injunction proceedings in district court were completed by February 16, 2015, less than two-and-a-half months after the States’ complaint was filed. The government promptly filed motions for a stay of the preliminary injunction in both the district court and the court of appeals, both of which were denied. The government also filed a motion to expedite the appeal, which the court of appeals granted. And the government filed its petition for a writ of certiorari just 11 days after the court of appeals’ decision.
If you notice, the SG gave the number of days that elapsed for every data point but one–how long it took them to see a stay in the Circuit Court. It took nearly a month–an inexplicable dithering. But the bigger discrepancy, noted obliquely in penultimate sentence, reflects the fact that the United States didn’t seek a stay from SCOTUS after the 5th Circuit denied one.
The exigencies of the situation and the need to preserve the possibility of prompt review make that appropriate, irrespective of the absence of a request that this Court stay the preliminary injunction pending certiorari review.
The failure to seek a stay from the Court back in May, 2015 still baffles me. If they sought a stay from the district court, and sought a stay from the Circuit Court, why no go ahead and seek a stay from SCOTUS? The shadow docket has become de rigueur in today’s practice. The answer the White House gave is that even if a stay was granted, they would not be able to implement the program because of the uncertainty that the Fifth Circuit, and maybe even SCOTUS, may ultimately rule against the Federal Government. This would keep the legitimacy of the program in limbo, and discourage people from applying. True enough. But if a stay was sought, oral arguments would likely have been held in June, or maybe even September 2015–like with Citizens United. (A ruling on the briefs would be unlikely). A decision on the stay would’ve followed soon. By this point, we would likely already have a pronouncement on the program’s legality. If the Supreme Court found that there was no standing–even on a stay–the 5th Circuit would’ve certainly had to oblige. If the Court found that the case was not justiciable–even on a stay–the 5th Circuit would have had to oblige. If the Court found that notice-and-comment was unnecessary–even on a stay–the 5th Circuit would have had to oblige. So even if the case first had to go back to the Circuit Court for arguments on the merits, with a stay, the government could have resumed preparation of DAPA. And if the Court had ruled in favor of the government on the stay, the odds are the Court would also rule for the government on the merits. So what did the government have to lose by not seeking a stay in the summer of 2015? Why would they prefer the Court ruling on it in the summer of 2016–mere months before the election. I hinted in some earlier posts that there was a political calculus here, and made this post explicit in The Federalist:
More practically, DAPA can’t possibly be implemented in the waning days of the Obama presidency, so even a government victory in June would only set up the question of whether the next president follows through on the policy. President Obama no doubt recognizes this dynamic and would welcome a campaign cudgel: “The Supreme Court upheld my program, but I can’t implement it in time, so vote for Hillary.”
On the flip side, if the Court had denied a stay in May 2015, that would have sent a strong signal to the 5th Circuit that the government was unlikely to prevail. So maybe this is the risk they took. But it was a huge risk.
The SG closes with a trump card:
We note, however, that should state respondents’ request for a 30-day extension be granted, we anticipate filing a motion for expedition and a May argument session to permit the case to be heard this Term.
I noted in a previous post how rare the May arguments are–only three in the last quarter-century, and none because the case fell on the wrong side of the January-February line. Even if the Justices give Texas 30 days, the “10th Justice” will be right back to request an argument in May.
We should get a ruling on Wednesday.