U.S. Solicitor General Donald Verrilli is asking the Supreme Court to deny a request from Texas and 25 other states for a delay before considering whether President Barack Obama’s executive amnesty is illegal. The Court should resolve the case before its term ends in June 2016, Verrilli says.
Led by the state of Texas, 26 states challenged the president’s program allowing 4.3 million illegal aliens to remain in the United States and receive work permits, a program known by the acronym DAPA.
As Breitbart News reported, on Nov. 9 the U.S. Court of Appeals for the Fifth Circuit ruled that Obama’s DAPA program violates both the process required by the Administration Procedure Act (APA) for making federal regulations, as well as the Immigration and Nationality Act (INA). Having invalidated Obama’s actions on statutory grounds, the Court did not reach a conclusion on the states’ third issue in the lawsuit, whether the president’s actions also violated the Constitution’s Take Care Clause.
The administration announced it would seek review in the Supreme Court. On Nov. 20, Verrilli filed a petition for certiorari at the Supreme Court, asking the justices to hear the Justice Department’s appeal of the Fifth Circuit’s decision.
Shortly thereafter, Texas Solicitor General Scott Keller requested the Court to extend to 60 days the normal 30-day window for the states to file a brief opposing Verilli’s petition. Keller explained that his team needed the extension because of numerous upcoming deadlines they must meet. Such extensions are routinely granted.
On Nov. 24, Verrilli filed a letter with the Court opposing the extension. Extending the current deadline by 30 days would push a vote on the cert petition past the normal cutoff for this year’s cases, meaning that the Supreme Court would not hear the case until October 2016, with a decision unlikely before Obama leaves office on Jan. 20, 2017.
“As detailed in the petition, the [Fifth Circuit’s decision] prevents the government from taking any steps to further an immigration policy of exceeding importance to federal law enforcement, … and to millions of families with longstanding and close connections to this country,” Verrilli’s letter reads.
He reminded the Court that there are 26 states in this legal challenge against the Obama administration, and argued that if Texas is too busy to meet the normal 30-day deadline, then the other 25 states could help.
Verrilli said the government would agree only to extend the deadline for a few days, to Dec. 29, and that the government would forfeit its right to file any later briefs in reply to the states. This would then guarantee that the justices would have time to vote on the petition at their Jan. 15 conference. If the Court grants review on that date, it would allow just enough time to fully brief the case and hear arguments during the last week of April, which is when the Court’s final cases for this year’s term will be heard.
While all this would normally be inside baseball, it could determine one of the most controversial episodes of Obama’s presidency. Determined to resolve this matter before the 2016 election, Verrilli added that should the “request for a 30-day extension be granted, we anticipate filing a motion for expedition and a May argument session to permit the case to be heard this Term.”
The case is United States v. Texas, No. 15-674.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.