The Department of Justice announced Tuesday that it would appeal a court ruling that upheld an injunction against President Obama's executive actions on immigration. The 2-1 Fifth Circuit decision, while not unexpected from the conservative three-judge panel, was a blow to nearly five million undocumented immigrants who have been looking to the two programs—Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA)—to provide them with work permits and temporary deportation relief.
The Justice Department is now in a race against the clock to petition the Supreme Court to put the case on its 2016 docket, meaning it would be heard and resolved while Obama is still president. Ian Millhiser notes that there's no firm deadline for submitting a case for consideration, but mid-November tends to be on the outside edge of making the cutoff.
There’s no way to be certain when (Solicitor General Donald) Verrilli must submit this petition to avoid delaying resolution of this case another year. It is likely that the solicitor general may still have a few precious days to submit the petition — though the deadline may have already passed.
For instance, the same-sex marriage case, Obergefell v. Hodges, was actually submitted to the justices on November 14, 2014 and still made the court’s 2015 docket.
Many immigration advocates in fact speculate that the panel held its decision precisely so it would be nearly impossible to make the high court’s deadline. Here's immigration lawyer David Leopold on Judge Dineen King, the panel's dissenter:
As King correctly observes, in March the 5th Circuit granted the Department of Justice’s request to fast-track the case. On July 10, Smith, Elrod and King heard argument on the merits of the case. Why then did it take four long months for the panel to decide; especially when there was little doubt about what Smith and Elrod were going to do?
Nearly everyone watching the case knew the two Republican appointees were all but certain to side with the GOP challenge to Obama’s deferred action program. That’s because in May they both refused to temporarily lift Hanen’s hold on the administration’s immigration actions, stating: “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”
So not only did everyone correctly suspect the outcome at the Fifth Circuit appeal, the judges themselves actually telegraphed what was likely to happen back in May. Still, here we are in November.