Opinion: On immigration, another disappointing, cynical delay

We need more time. That was the message yesterday from the state of Texas to the Supreme Court, in the ongoing battle over President Obama’s executive action on immigration. After a panel of the Fifth Circuit Court of Appeals refused to lift an injunction against the president’s immigration plan two weeks ago, the Obama administration quickly filed papers for an appeal to the Supreme Court. On Monday, the Attorney General of Texas requested a 30-day extension before the state files its response at the high court.

The latest potential delay in the legal battle over President Obama’s immigration plan is both cynical and disappointing. The country needs immigration solutions, not more partisan political games. 

— Raul A. Reyes

This request for an extension should dishearten anyone who is dissatisfied with our current immigration system. It means that a case that has been slow-walked through the courts will likely drag on even longer. It means that the Texas Attorney General may further delay a case that has been politically motivated from the start. It means that our dysfunctional status quo on immigration will remain unchanged in the near future.

Normally, requests for such extensions at the Supreme Court are not a big deal, and they are routinely granted. But here, time is of the essence. It was about a year ago that President Obama announced his executive action on immigration, which would have expanded a program granting deportation relief to young immigrants and created a new program granting deportation relief to undocumented parents of U.S.-born children. Then a federal judge put the plan on hold in February, and it has been tied up in the courts ever since. Most recently, a panel of judges for the Fifth Circuit Court of Appeals took nearly four months to issue their ruling on the case, and this was after the case had been put on a fast track. When the Fifth Circuit finally issued their opinion on the case, the dissenting judge even noted "the extended delay that has occurred in deciding this 'expedited' appeal” and added that, “There is no justification for that delay.”

These delays matter because we are fast approaching the point at which the Supreme Court’s docket for this term gets filled up. The Fifth Circuit Court panel’s ruling against the Obama administration came out just in time for the government to petition the high court for review of the case. However, now that Texas has asked for an extension, it is possible the case will be pushed back to the following term. That means there might be no decision on President Obama’s plan until after he has left office in 2017, and his plan may never go into effect because the new president could cancel it, or take his or her own executive action on immigration.

In a letter to the Supreme Court clerk, Texas Solicitor General Scott Keller explained that his request for an extension is based on “numerous pressing deadlines” in cases that the Texas Attorney General is handling, including a redistricting case coming up on December 8. Despite the fact that this case has gone on for nearly a year, Keller assured the Court that his request for an extension “rests on good cause.”  It may be true that his office is overburdened with ongoing litigation; if so, the Texas Attorney General’s office should either staff up, or be more selective about the cases in which the state becomes involved. What Texas shouldn’t be doing is leaving the lives of nearly five million undocumented people – those who could potentially benefit from the president’s program – in limbo while the state’s lawyers get their act together.

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True, the government missed earlier procedural opportunities to speed this case up, a fact Keller points out in his letter. The Obama administration could have also announced its executive action plan earlier, so we would not be in this time crunch. Yet these lines of argument are irrelevant to the reality of right now. This latest potential delay on executive action will do nothing to solve our immigration woes. Undocumented people will continue to put down roots in the U.S., complicating future efforts at reform, and state and local governments will miss out on the economic benefits of the president’s plan. Although there is a chance that the Court could grant an expedited briefing or a special sitting to hear this case, those options are highly unusual. So the slow pace of this case ensures that, on immigration, inaction will continue to be the norm.

All this legal foot-dragging is particularly wasteful because it is likely that the Supreme Court will ultimately rule in favor of the Obama administration. There is both legal and historical precedent for presidents to act on their own regarding immigration. From Truax v. Raich (1915) to Arizona v. U.S. (2012), the Supreme Court has consistently affirmed federal authority over immigration policy.

The latest potential delay in the legal battle over President Obama’s immigration plan is both cynical and disappointing. The country needs immigration solutions, not more partisan political games.