After the 5th Circuit’s delayed decision, issued November 9, 2015, continuing to block DAPA (Deferred Action for Parents of Americans and Permanent Residents), the Obama Administration announced that it will seek Supreme Court review of the decision. There are at least two important questions at this point: (1) Will the Supreme Court agree to hear the case? and (2) If the Supreme Court takes the case, will the Court issue a decision in 2016, or in 2017?
First, in order for the Supreme Court to hear the case, at least 4 out of the 9 justices need to vote in favor of taking the case. Because of the importance of this case, and because of the legal questions involved, I believe that at least 4 of the 9 justices will agree to hear the case. I think that the justices most likely to vote in favor of hearing the case are Justices Ginsburg, Breyer, Sotomayor, and Kagan. I also think there is a good possibility that Justice Kennedy will vote in favor of hearing.
Second, the timing of the process is critical, especially in light of the fact that President Obama will be leaving office on January 20, 2017.
The Supreme Court’s term begins in October and runs through June.
Once the Obama Administration files the petition asking the Supreme Court to hear the case, then the attorney representing the opponents of DAPA will have 30 days to respond. They may ask for a 30-day extension of time for their response, and the Supreme Court generally grants such extensions. After the Supreme Court receives the response, then the justices decide whether to take the case.
Generally, if the Supreme Court makes the decision to hear a case before January 15, then they usually set the case for the current term. But if they make their decision to hear the case after January 15, then they usually set the case for the following term.
If the Obama Administration submits their petition to the Supreme Court by today, November 13, 2015, then the attorneys representing the opponents would need to respond by December 13. Assuming that they would seek the 30-day extension, then their response would be due January 13, 2016. If the Obama Administration submits their petition after today, then it appears that the DAPA opponents would likely be submitting their response after January 15, 2016. That might result in the case being scheduled for the term that begins October 2016 and goes through June 2017, after President Obama will have already left office.
Yesterday, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that continues to block President Obama’s Deferred Action for Parents of Americans (DAPA). Today, the Obama Administration announced that it will appeal the ruling to the U.S. Supreme Court, which could issue a decision by June 2016.
President Obama announced the DAPA program on November 20, 2014, almost one year ago. The program has been tied up in litigation and has never been implemented. The program is meant to provide temporary help to undocumented persons who have lived in the United States since January 1, 2010, and who, on November 20, 2014, had a son or daughter who is a U.S. citizen or lawful permanent resident, and who meets certain other eligibility criteria. For those who are granted DAPA, they would receive an Employment Authorization Document valid for two years, and relief from the prospect of deportation unless they are convicted of crimes.
Yesterday’s decision by the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, was decided by a three-judge panel. Two judges – Jerry E. Smith and Jennifer Walker Elrod – voted to continue to block DAPA, issuing a 70-page decision, while Judge Carolyn Dineen King disagreed, writing a dissent of 54 pages. Judge King concluded her dissent by writing, “I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay.”
I will be closely monitoring the case, and will provide updates as they are available.