The case, if granted certiorari after the Tenth Circuit rules, would test the high court’s willingness to constrain executive power, said Deborah Sivas, director of the Environmental and Natural Resources Law and Policy Program at Stanford Law School.

“It might look too much like the Court favors executive power when conservative presidents act, and constrain it when more progressive presidents act—not a good look for the court,” Sivas said. “I have to believe that Roberts still wants to fight against delegitimization of the Court as just another hack political branch.”

The long wait for a ruling is unusual for the Tenth Circuit, she said.