Solicitor General Donald Verrilli is going to have a very long night.
To explain, on Monday evening, an especially conservative panel of the conservative United States Court of Appeals for the Fifth Circuit handed down a decision blocking much of President Obama’s immigration policy — in effect thrusting 4.9 million undocumented immigrants who expected to benefit from an expansion of the Deferred Action for Childhood Arrivals program, known as “DACA,” and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program, known as “DAPA,” into limbo. This decision should surprise no one, however, as both of the judges who joined the Fifth Circuit’s majority opinion previously sat on a panel that handed down a more temporary order casting doubt on the two programs. Neither of these Judges, Jerry Smith and Jennifer Elrod, have changed their mind about DACA and DAPA since last May, when that first order was handed down. The third judge on the more recent panel, Judge Carolyn King, dissented.
Yet, while Smith and Elrod were widely expected to rule against the Obama administration a second time, administration officials — and the immigrants who hope to benefit from the expansion of DACA and the creation of DAPA — spent the last several months sitting in horror as time ticked away without Smith and Elrod handing down their inevitable decision. Roughly speaking, if Verrilli is able to get a petition before the Supreme Court asking them to hear the Fifth Circuit’s decision by the middle of this month, then it is possible that the case will be decided by the end of June. If Verrilli is unable to do so (perhaps because Smith and Elrod took to long to hand down a decision for Verrilli to appeal) the Supreme Court’s resolution of the case would most likely wait until next June 2017 — months after President Obama leaves office.
With Smith and Elrod’s opinion finally coming down on November 9, Verrilli and his colleagues are now in a race against the clock to submit a petition to the justices before time runs out. There’s no way to be certain when Verrilli must submit this petition to avoid delaying resolution of this case another year. It is likely that the solicitor general may still have a few precious days to submit the petition — though the deadline may have already passed.
One of the last cases to be heard during the Court previous term, for example, was Obergefell v. Hodges, the marriage equality case. Obergefell was argued on April 28, 2015 — the second-to-last day of the Court’s argument calendar, and decided in the final days of the term. The petition asking the Court to hear Obergefell was submitted to the justices on November 14, 2014 — just less than one year before Smith and Elrod’s latest decision came down.
It should be noted that this middle-of-November deadline is far from firm. In the Court’s 2013-14 term, for example, Court’s docket filled up much quicker than in the Obergefell term. Nevertheless, the fact that the Fifth Circuit’s decision is now out at least gives the Justice Department a possibility of making the Supreme Court’s deadline — and, potentially, to ask the justices to expedite their decision given the unusual significance of this case.
In any event, given the fact that Smith and Elrod already ruled against DAPA and expanded DACA once, the likelihood that they were going to reverse course in a second opinion was slim to none. Now, at least, the Justice Department can take this case to the panel of nine justices who were always likely to weigh in on the programs’ fate from the beginning.
It's worth noting that Judge King criticizes Smith and Elrod for the fact that it took so long for this case to be decided in her dissenting opinion. "I have a firm and definite conviction that a mistake has been made," King writes in dissent. "That mistake has been exacerbated by the extended delay that has occurred in deciding this 'expedited' appeal. There is no justification for that delay."