After a slow crawl through the lower federal courts, the fate of President Obama’s long-delayed immigration programs is finally before the Supreme Court. On Friday, the Justice Department asked the Supreme Court to hear their appeal of a trial judge’s order halting the programs. Nevertheless, because of a quirk of the Supreme Court’s scheduling process, the fate of these programs — or, at least — the question of whether they will be implemented while Obama is still in office, could rest with one of the justices who is least likely to be sympathetic to the undocumented immigrants who will benefit from the programs: Justice Antonin Scalia.
The Story So Far
Last February, Judge Andrew Hanen, a federal judge with a history of advocacy for harsher immigration policies, halted the creation of a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) as well as the expansion of the existing Deferred Action for Childhood Arrivals (DACA) program. Together, these two changes to immigration policy were expected to allow 4.9 million undocumented immigrants to temporarily reside in the country without fear of deportation.
Since that decision, the Obama administration has had a string of extraordinarily bad luck in a federal court of appeals. The United States Court of Appeals for the Fifth Circuit is a conservative court, but its judges do not always vote conservatively in immigration cases. Indeed, in the most recent major immigration case to be decided by the full court, the judges voted 9-6 to strike down an ordinance that effectively made it a crime for undocumented immigrants to rent a home. Nevertheless, when the Justice Department sought a stay of Hanen’s order suspending DAPA and expanded DACA, they drew a three-judge panel dominated by two of the dissenters in that last immigration case. Those two dissenters, Judges Jerry Smith and Jennifer Elrod, joined a 2-1 opinion refusing to stay Hanen’s order.
Some time later, the Justice Department brought an appeal of Hanen’s order to the Fifth Circuit, expecting it to be heard by a different panel. Yet the three-judge panel selected to hear this appeal also included Smith and Elrod. Judges Smith and Elrod predictably did not change their mind between their two opinions backing Hanen’s order.
So long as Hanen’s order remains in effect, DAPA and expanded DACA cannot be implemented. Yet DOJ’s efforts to stay or lift that order have been beset by unusual delays. As a general rule, a party seeking to stay a federal trial court’s order must ask the trial judge for a stay before it seeks one from a court of appeals. Hanen, however, delayed his decision on DOJ’s request for a stay for weeks. Then, at the court of appeals level, Smith and Elrod took months to release their second opinion siding with Hanen, even though there was never any doubt who they would back in that opinion. That led dissenting Judge Carolyn King to suggest that Smith and Elrod had behaved improperly. “I have a firm and definite conviction that a mistake has been made,” King wrote in her 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.”
Race Against The Clock
The reason why these delays matter, beyond the fact that they extend the period that Hanen’s order is in effect without being fully reviewed by higher courts, is that the Supreme Court’s docket for the term that ends this June is filling up. That’s why the solicitor general raced to file DOJ’s petition asking the Court to hear this case less than two weeks after Smith and Elrod handed down their most recent opinion, despite the fact that the Supreme Court’s rules give the Justice Department 90 days to file such a petition. If the justices consider this petition on an ordinary schedule, it is likely, if not entirely certain, that they will be able to schedule the case to be heard this term — in that event, a decision is likely to be handed down in June of 2016.
It is far from clear that the case will be considered on an ordinary schedule, however. Typically, the party that won in the court of appeals — in this case, a coalition of states led by Texas — must file their brief opposing DOJ’s petition within 30 days of when the case is placed on the Court’s docket. The Court’s rules, however, permit Texas to seek an extension of its time to file such a brief. If such an extension is granted, it becomes very unlikely that the case will be decided in the current term — resolution of the case will likely be delayed until at least June of 2017. Given the fact that Texas benefits from the status quo, they have a strong incentive to seek an extension for the sole purpose of delay.
Under the Court’s rules, such a request for an extension ordinarily “may be acted on by the Clerk in the first instance.” After the clerk rules on whether to grant the extension, “any party aggrieved by the Clerk’s action may request that the application be submitted to a Justice or to the Court.”
So here’s where things get interesting. If the clerk decides to grant the extension, DOJ can ask that the full Court reconsider that decision. That, at least, leaves the timing of this case up to the five justices most likely to be sympathetic to their position. If the clerk denies the extension, however, then Texas can ask a single justice to reconsider that decision. And the Circuit Justice for the Fifth Circuit — the justice who ordinarily hears similar procedural motions that arise out of the Fifth Circuit — is Justice Scalia.
Should this case be decided on the merits, the Justice Department has good reason to be optimistic that they will prevail. Shortly after Obama announced the DACA program in 2012, the Court handed down an opinion emphasizing the executive branch’s “broad discretion” in immigration matters. “Discretion in the enforcement of immigration law embraces immediate human concerns,” the Court explained. “Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.”
This opinion was authored by Justice Anthony Kennedy and joined by Chief Justice John Roberts, both of whom are Republicans.
One justice that did not join this opinion, however, was Scalia. Scalia, moreover, included a dig at the DACA program in his dissent. Thus, if he has the power to decide Texas’s likely request for delay, he will have the power to leave his preferred policy outcome in place for at least another year.