Civil and Human Rights

Feds Decry Delay Tactics in Immigration Reform Case



Intent on getting the Supreme Court to rule on President Obama’s stalled immigration plan this term, the Justice Department asked the court to deny Texas’ request for a 30-day extension to file an opposing brief.


U.S. Solicitor General Donald B. Verrilli Jr. said in a letter Tuesday to Supreme Court Clerk Scott S. Harris that there is too much at stake for the millions of undocumented immigrants affected by the policy to allow a delay that could push the case into the high court’s next term.


If delayed until the next term a ruling may not come until June 2017 and would put the plan on shaky ground because Obama will leave office in January 2017.


“The effect of such a delay would be to prolong for an additional year the disruption of federal immigration policy and the irreparable harm of denial of work authorization and other protections to millions of people who would be eligible for those protections if the policy is upheld,” Verrilli wrote in a 2-page letter.


It’s been a rough road for Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, since Obama unveiled it in November 2014 only to have it tied up by a lawsuit from Texas and 25 other Republican-led states.


U.S. District Judge Andrew Hanen issued an injunction in February that blocked DAPA from taking effect as scheduled in May.


The government says DAPA is based on the idea of prosecutorial discretion, focusing its limited resources on deporting serious criminals and recent border crossers rather than law-abiding immigrants with family ties to the United States.


The Fifth Circuit denied the feds’ request to remove the injunction first in May and again on Nov. 9, leading the Justice Department to appeal to the Supreme Court on Nov. 20.


Now Texas wants extra time beyond the Dec. 21 deadline to file an opposing brief.


Texas Solicitor General Scott Keller said the extension is necessary because the state has other cases before the court that take priority.


In his letter, Verrilli said the feds would be willing to grant the states an 8-day extension to Dec. 29, which would allow the Supreme Court to hear the case this term if it decides to grant review.


Should the Supreme Court grant the extension, Verrilli said the Justice Department will file a motion to expedite to ensure the case is heard this term.


The Supreme Court has not indicated when it will rule on the extension motion.


Brianne Gorod, a staff attorney with the Constitutional Accountability Center and former clerk for Justice Stephen Breyer, said it’s obvious Texas is trying to run out the clock on Obama’s efforts to launch DAPA before he leaves office. 


But Gorod said the Supreme Court has full discretion over case timelines.


“The Supreme Court has complete control over its calendar, and it has complete control over the briefing schedules for the cases it decides to hear, so there’s no question that the court could hear the case this term if it decided to do so,” Gorod said in a statement.


She added that it would be “incredibly surprising” if the court punts the case.


“If the court doesn’t hear the case this term, it may look like the court is playing politics with the timing of the decision, trying to avoid yet another politically charged case on its docket (there are already quite a few) in an election season. If there’s one thing Chief Justice Roberts has made clear, on repeated occasions, it’s that he doesn’t want it to appear that the court is a political body.”

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