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Why Texas Shouldn’t Be Allowed To Run Out the Clock

November 25, 2015
When it comes to the challenge to President Obama’s executive action on immigration, Texas is trying to run out the clock. Luckily for the Administration and for the five million individuals whose lives are in limbo, there really is no clock. The Supreme Court has complete discretion over when it hears cases, and there’s no question that it can—and should—hear this very important case this Term.
A little over a year ago, President Obama announced a new program that would allow certain parents of U.S. citizens or lawful residents to request deferred removal.  Even though this program was supposed to go into effect more than nine months ago, its implementation remains blocked as a challenge to its legality works its way through the courts.  
After months of waiting for the Fifth Circuit to finally rule on the program, it’s now time for the Supreme Court to take up the case. There should be little question that the Court will take the case—it would be incredibly surprising for the Court not to hear a case in which the lower courts have held that a major federal program is likely unlawful. And there should be little question about what the Court will decide—the President’s deferred action program is a necessary exercise of discretionary authority conferred on the President by Congress. Indeed, as the Supreme Court recognized just three years ago (in an opinion written by Justice Kennedy and joined by Chief Justice Roberts), “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Moreover, this program is similar to others that have been implemented by Presidents of both parties and blessed by Congress on a bipartisan basis.  
It’s no wonder then that Texas is trying to delay the Court’s review by seeking an extension of time to file its brief in opposition to the government’s request that the Court hear the case. After all, if the Court doesn’t hear the case this Term, it won’t be able to decide the case until after the 2016 presidential election, by which time the case could be moot.  
But Texas is unlikely to succeed in this endeavor to prevent the Court from weighing in on this important legal issue. First, it’s not at all clear that Texas will get the extension it seeks. Texas already has 30 days to respond to the government’s petition; that is ample time to address the arguments in the government’s brief and those of the government’s amici, especially if (as is anticipated) the government’s amici file well before Texas’s deadline. Texas certainly does not need 60 days, which is considerably more time than it requested and was given to file its merits brief in the Fifth Circuit. Notably, the government filed its brief asking the Supreme Court to hear the case just 11 days after the Fifth Circuit issued its decision. The government has consented to an eight-day extension for Texas; Texas needs no more.  
Second, and more important, even if Texas were granted the full 30-day extension it seeks, the Court can—and should—still hear the case this Term. 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. To be sure, it would likely require that briefing in the case be expedited, but that happens all the time; it even happened before the Fifth Circuit in this very case. If the Supreme Court’s April oral argument calendar is already full by the time the Court decides to hear the case, the Court could either hear three cases one day in April (as the Court’s Visitor’s Guide notes, “occasional afternoon sessions [are] scheduled as necessary”), or it could schedule a May sitting, which might be unusual, but is hardly unprecedented. Consider, for example, the 1997 case Raines v. Byrd: the Court decided to hear that case in late April; it held oral argument in late May, and it decided the case in late June. Apparently the wheels of justice can move swiftly when they need to!
To see just how easy it would be for the Court to hear the Texas case this Term, consider a couple of possible timelines.  First, one in which Texas is granted an eight-day extension:
Texas’s response filed: 12/29
Petition distributed to chambers: 12/30
Petition conferenced: 1/15
Government brief due: February
Texas response due: March
Oral argument: April
Decision: June
Second, one in which Texas is granted a full 30-day extension:
Texas’s response filed: 1/21
Petition is distributed to chambers: 1/27
Petition conferenced: 2/19
Government brief due: March 
Texas response due: April
Oral argument: May
Decision: June
So the Court can hear the case this Term, and it absolutely should. That’s true not only because the questions it presents are incredibly important, but also because the President’s program will remain blocked until the Supreme Court decides this case. Moreover, given the timing of the presidential election, it’s possible this case could be mooted with the program never having gone into effect and with the Supreme Court never having had an opportunity to weigh in. Indeed, 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.     
So while Texas may be hoping it can run out the clock, the ultimate decision on when this case will be heard isn’t Texas’s—it’s the Court’s. Fortunately for everyone who thinks the Court should be the final arbiter of the important legal questions presented in this case, the Court can hear the case this Term—and there’s every reason to think that it will.
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