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The Clock Is Ticking On DAPA, And Only The Supreme Court Can Save It

The Huffington Post The Huffington Post 12/11/2015 Cristian Farias

President Barack Obama's executive action on immigration turns a year old next week, and it's still stuck in the courts.

Monday night, the core of the executive action suffered its latest setback, when an appeals court refused to lift a February order that blocked implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents, also known as DAPA. The expanded version of DACA -- or the Deferred Action for Childhood Arrivals policy -- is also on hold.

Now both initiatives hang in the balance, and their only route to implementation is through the U.S. Supreme Court. But the clock is ticking toward the 2016 elections, and it's unknown how the court will rule, or whether it will even agree to hear the case in the first place.

The Department of Justice has already said it will appeal Monday's ruling, but it hasn't said when. That's crucial if the administration wants to get the case before the justices in time for a ruling by June, when the current term ends.

For one, the court hears only about 70 of the thousands of cases that reach it for consideration each term, and it has very broad latitude to decide which ones get on the docket and which don't.

The first hurdle is formalistic. The court has rules and procedures for how it handles appeals, and it won't bend them to accept a case, even if it's potentially newsworthy or comes through a request from the Obama administration.

Still, immigration advocates and even opponents are confident the Supreme Court will get involved.

Josh Blackman, a South Texas College of Law professor who has followed the DAPA litigation and supports the states' position in the case (that DAPA and the DACA expansion are unconstitutional), has laid out a tentative timeline for how quickly the government has to move -- it needs to do so soon if it wants a chance at oral arguments in the spring and a decision before Obama leaves the White House.

Even then, review by the Supreme Court is not guaranteed because Texas could delay a formal response, which could push back the calendar. The rules that govern this are somewhat involved, but there's a very real possibility that the court, based on timing alone, may kick the case to its next term. That starts in October of next year -- way too close to the presidential election for the case to matter.

The Obama administration did not respond to a request for comment on when it's planning to file its appeal.

Assuming the government and the 26 states involved file all their paperwork in time, there's still the question of what the justices decide to do with the case. You only need four of them to agree to hear it, and arguably there's interest in reviewing some of the sweeping conclusions the U.S. Court of Appeals for the 5th Circuit reached on Monday.

Among them is the issue of "standing" to sue, or the legal right to bring someone into federal court. Here, Texas convinced the 5th Circuit court that implementing the president's immigration plan would bring "financial injury" to the state because it would have to issue driver's licenses to DAPA and DACA recipients "at a loss."

Arguably, that suffices to allow Texas to get its foot in the courthouse door. But as Reuters' Lawrence Hurley correctly observed, that puts the Supreme Court in the awkward position of reconsidering a ruling from 2007 that gave Democratic-leaning states the right to sue the George W. Bush administration over its implementation of climate change policy.

In that case, the court's conservative wing -- led by Chief Justice John Roberts -- disagreed that the states had a right to sue, while the court's liberals agreed the case could move forward. Now that immigration is at play and the administration is exercising discretion over deportations, will the Supreme Court switch sides?

From that concern flows another fundamental problem with the 5th Circuit's ruling: the remarkable finding that Congress gave the president no authority to deem some immigrants "lawfully present" on a temporary basis under current immigration law. That's a point U.S. Solicitor General Donald Verrilli Jr., who defends the government's interests before the Supreme Court, is likely to contest vigorously, since it strikes at the core of the government's ability to set "national immigration enforcement policies and priorities," which immigration law contemplates.

Ultimately, the justices may take into account political considerations when deciding what to do with the appeal. The biggest one is the 2016 presidential election, and the inescapable fact that Republican candidates have said they'd pull the plug on DAPA and DACA, while Democratic contenders have pledged to keep them in place or even expand them.

That thinking could cut two ways. The court could decide to not take the case because the politics behind it are too fraught, implying the elected branches should sort it out. Or the justices could agree to hear it precisely to make the point that the dispute does not belong in the courts -- that Obama's exercise of prosecutorial discretion over immigration matters is simply nonjusticiable as a matter of law.

Landmark decisions involving Obamacare and same-sex marriage have revealed how deeply divided the Supreme Court is over pressing social issues. Immigration -- and the president's prerogatives over it -- may just be the next battleground.

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