What Now for U.S. v. Texas?

By John Miano, June 24, 2016

The Supreme Court has decided not to decide anything in United States v. Texas. So what happens next?

Now the case progresses normally though the court system. The first stop is that the case will return to the Southern District of Texas. There, the next likely step is that the judge will work with the parties to create a schedule of events to take place.

The final event on that schedule is likely to be cross-motions for summary judgment. It is highly unlikely there will be a trial because the issues before the court are questions of law. Evaluating someone's credibility on the witness stand does not help in answering the question of whether DAPA is merely guidance or whether it is a substantive rule requiring public notice and comment. Instead, the parties will make arguments on paper and there may (or may not) be a hearing for the judge to ask questions.

Some time after that, the district court will issue an opinion. That can take six months or more.

The losing party is likely to appeal to the Fifth Circuit. That court would then review the district court's legal conclusions. On questions of law, the Fifth Circuit would not give deference to the conclusions of the district court.

The loser could then petition the U.S. Supreme Court to review the Fifth Circuit's decision.

The mystery that is unlikely to ever be answered is what the Supreme Court was split on. Most specifically, what were the four justices thinking who voted to reverse (i.e., to lift the injunction and allow the amnesty to proceed)? Would they have held:

  • the district court abused its discretion by granting a preliminary injunction?
  • the states did not have standing to bring the action?
  • on the merits of the case in favor of the government?