Civil and Human Rights

Coming in 2016: Supreme Court immigration fight

By Mike Lillis and Jordan Fabian


The Supreme Court announced Friday that it will examine a challenge to President Obama’s actions halting deportations for millions of undocumented immigrants, setting the stage for a summer verdict that’s sure to fuel an immigration debate already exploding on the campaign trail.


Every GOP presidential hopeful has vowed to rescind Obama’s programs if they win the White House, while the three Democratic contenders have all promised to keep the initiatives intact –– or even expand them if Congress doesn’t move on immigration reform legislation first.


The programs have never launched, and have been blocked for most of the last year by a series of lower-court rulings in favor of the 26 states challenging their legitimacy.


The timing of the Supreme Court case has important political implications for Obama, who’s hoping to push forward with a key legacy achievement months before he will leave office.


The announcement also has a stark practical significance, as millions of undocumented immigrants eligible for the programs have been hanging in limbo while the case moved through the courts.


The dynamics are not unlike those underlying the elections of 2012, when the Supreme Court’s ruling against an Arizona immigration law ignited the debate over deportations and carried into the presidential contest between Obama and GOP nominee Mitt Romney.


Then and now, the issue remains largely partisan, with Democrats hailing Obama’s programs as a necessary remedy to congressional inaction on immigration reform, and Republicans hammering the president with charges that he’s overstepped his executive authority.


All sides, however, welcomed the Supreme Court’s decision to hear the case, even as they predicted vastly different outcomes.


House Minority Leader Nancy Pelosi (D-Calif.) said she’s confident the court “will recognize the legality and necessity” of Obama’s actions, citing the “broad authority” of presidents “to defer removal when it is in the national interest.”


“The fact is that these actions fall well within the president’s broad authority and the clear legal precedent established by every administration –– Republican and Democratic –– since President Eisenhower,” Pelosi said in a statement.


Republicans disagree, accusing Obama of trying to sidestep Congress to legislate from the White House.


“With his actions, President Obama has attempted to bypass the constitutionally ordained legislative process and rewrite the law unilaterally,” Sen. Orrin Hatch (R-Utah), former chairman of the Judiciary Committee, said in a statement.


At issue are a pair of executive actions launched by Obama shortly after the mid-term elections of 2014. 


One, known as the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, would halt deportations and offer work permits to the parents of U.S. citizens and permanent legal residents. The other would expand Obama’s 2012 program –– the Deferred Action for Childhood Arrivals (DACA) initiative –– which provides the same protections to some high-achieving illegal immigrants brought to the country before age 16. The expanded program would simply extend DACA eligibility to a greater number of people. 


All told, the programs could defer deportation for as many as 5 million illegal immigrants.


Texas and 25 other states quickly challenged the legality of the unilateral actions, arguing that they constitute a case of executive overreach that would saddle their budgets with exorbitant new costs, particularly in issuing drivers licenses.


Last February, U.S. District Judge Andrew S. Hanen, of Brownsville, Texas, found that the states had a legitimate basis to bring their case, blocking the programs from taking effect. The decision was largely based on Hanen’s ruling that the administration violated the federal law requiring a public comment period when new rules are established.


In November, the Fifth Circuit Court of Appeals in New Orleans ruled 2-1 in favor of Hanen’s injunction, ensuring the programs would remain idle and setting the stage for the Supreme Court to consider the case.


“We’ve got a lot of confidence in the legal arguments that we’ll be making before the court,” White House press secretary Josh Earnest said Tuesday. 


The immigration issue has been no easy ride for Obama. Although a vocal proponent of comprehensive immigration reform that includes a pathway to citizenship, he’s also taken plenty of heat from his base for what many liberals deem a lackluster effort to press his case and adopt unilateral reforms in the absence of congressional action.


Complicating his fight, Obama for years had pushed back against the liberal attacks by insisting that a sweeping halt to deportations was outside his power.


“I am president, I am not king. I can’t do these things just by myself,” Obama said in a 2010 interview with Univision.


Republicans have cited such comments as evidence that even the president doesn’t believe he has the authority to make changes of the sort he’s now trying to adopt.


“The court should affirm what President Obama said himself on more than 20 occasions: that he cannot universally rewrite congressional laws and circumvent the people’s representatives,” Texas Attorney General Ken Paxton, who is leading the 26 states that brought the lawsuit, said Tuesday in a statement.


The immigration issue has been a tough one for the Republicans, as well. 


On one hand, GOP leaders are trying to appeal to Latino voters, a fast-growing group that could be vital in a number of battleground states, including Florida, Colorado, Nevada and Virginia. Obama won roughly 70 percent of those voters in both 2008 and 2012, and the Republicans don’t want 2016 to continue the trend.


On the other, the Republicans want to be seen as promoting a tough-enforcement position favored by their conservative base. That platform has helped both Donald Trump and Sen. Ted Cruz (R-Texas) propel to the top of the GOP primary race.


In taking the case, the Supreme Court must decide whether the states have the legal right to sue the government to begin with. They’re pointing to a 2007 Supreme Court ruling which held that states had a right to sue the Environmental Protection Agency over emissions regulations the agency declined to adopt –– a case cited by the Fifth Circuit in its November ruling.


The court will also weigh whether the Obama administration violated federal law by adopting new policies without allowing a period for the public to weigh in, as required by the Administrative Procedures Act when the executive crafts new rules. 


The court also announced that it would consider another question, which was not addressed by the lower courts: whether Obama acted within the so-called “Take Care” clause of the Constitution, which requires the president to ensure “that the laws be faithfully executed.”


That addition installs an extra hurdle the administration must hop to put its programs into effect. But immigrant rights advocates were quick to welcome the additional review, saying it would relieve the uncertainty facing millions of undocumented immigrants eligible for the programs, while eliminating the need to re-litigate the initiatives if opponents filed another suit invoking the Take Care clause.  


“It’s a good sign that the court is taking all of these issues [indicating] that it wants to resolve the case once and for all,” said Elizabeth Wydra, chief counsel for the Constitutional Accountability Center.


Advocates point to the 2012 Arizona case –– which challenged Arizona’s law empowering local law enforcers to arrest people based on suspicions that they were in the country illegally –– as the precedent they’re hoping the court will adopt four years later. 


Writing for the majority in that case, Justice Anthony Kennedy found that the federal government  has “significant” and “broad” powers to regulate immigration law. 


“Arizona may have understandable frustrations with the problems caused by illegal immigration,” he wrote, “but the State may not pursue policies that undermine federal law.” 


Surprising many court observers, Chief Justice John Roberts sided with the majority.


Still, the advocates, while confident they’ll win, declined to handicap individual votes. 


“It’s an impossible business to try to predict how the justices are going to rule,” Wydra said.

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