Civil and Human Rights

In potential landmark case, Supreme Court takes up Obama’s immigration plan

In a signal of the potential magnitude of the dispute, the justices instructed lawyers to address whether President Obama’s unilateral action violates the ‘take care’ clause of the US Constitution.


By Warren Richey


Setting the stage for a potential election-year blockbuster decision, the US Supreme Court has agreed to decide a Texas case challenging President Obama’s executive action to shield from deportation more than 4 million undocumented immigrants.


The president announced the controversial policy in November 2014. But before it could go into effect, Texas and 25 other states filed a lawsuit seeking to block the program.


A federal judge in Texas issued an injunction, and that action was upheld by a federal appeals court panel last year.


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The justices’ decision on Tuesday to weigh in on the immigration case means the high court will be examining yet another politically-sensitive controversy in a presidential election year.


The justices are already expected to decide by late June cases examining state-imposed abortion regulations, the drafting of voting districts, use of race in college admissions, and whether public unions can require nonmembers to pay fees for collective bargaining.


Specifically at issue in the case is whether a federal judge in Texas acted properly in issuing an injunction to block the president’s executive action.


Constitutional question at stake


In an important signal of the potential magnitude of the dispute, the high court instructed the lawyers to also address the most fundamental question raised in the litigation – whether President Obama’s unilateral action to advance his immigration program violates the “take care” clause of the US Constitution.


Article II of the Constitution sets out the duties of the president. It includes the requirement that the president “shall take care that the laws be faithfully executed.”


The issue is whether federal immigration statutes, as passed by Congress and signed into law by the president, permit the kind of broad discretion for unilateral executive action claimed by the Obama administration.


Lawyers for the administration and for a group of undocumented immigrants who would benefit from the new immigration policies had asked the high court to lift the injunction and allow the Obama immigration program to take effect.


They argue that the complaining states do not have the necessary legal standing to bring their lawsuit. They also argue that the administration did not exceed its authority in adopting regulations that would grant deferred deportation status to several million undocumented immigrants and provide them with work permits.


Republicans accuse the president of using his executive authority to usurp legislative power the Constitution assigns to Congress. They say existing immigration laws bar the Obama administration from deciding for itself that large categories of people should be granted special immigration status and authorization to work.


Administration officials and Democratic supporters argue that US immigration laws grant expansive discretion to federal officials to decide how best to enforce those laws. The president’s executive action on immigration fits easily within that wide zone of prosecutorial discretion, they say.


Texas Solicitor General Scott Keller disputes that assertion. He says the president’s executive action on immigration is one of the largest changes in immigration policy in American history.


“The Executive claims the power to ignore [federal immigration] statutes and unilaterally deem lawful the presence of any unauthorized alien it chooses not to remove,” Mr. Keller wrote in his brief urging the Supreme Court to allow the injunction to remain in place.


“Moreover,” he added, “the Executive asserts that it may do so for millions of aliens without even using conventional notice-and-comment procedures.”


Usually when a federal agency like the Department of Homeland Security writes new regulations, it provides notice of the action and an opportunity to receive public comments. The Obama administration decided that it did not have to engage in this process when writing its new immigration regulations.


“[The president’s executive action] is a crucial change in the Nation’s immigration law and policy – and that is precisely why it could be created only by Congress, rather than unilaterally imposed by the Executive,” Keller said.


“Law-enforcement discretion does not confer the distinct power to deem unlawful conduct as lawful,” Keller added.


In his brief to the court, US Solicitor General Donald Verrilli said the administration’s new immigration provisions are partly necessary because Congress has appropriated only enough money to support removal of 4 percent of deportable immigrants per year.


Given those budget constraints, the administration has sought to set priorities and focus its enforcement effort on those undocumented immigrants who pose the greatest danger to the American public, such as criminals and terrorists, he said.


In contrast, he said, most undocumented immigrants are hard-working individuals trying to provide for their families.


Since 2012, more than 600,000 individuals have been granted deferred deportation status and given work permits under an Obama Administration program aimed at children of undocumented immigrants who arrived in the US at an early age and who have lived in the country for an extended period. That program is called Deferred Action for Childhood Arrivals (DACA).


No legal challenge has been filed to that 2012 program. The current litigation is aimed at the president’s November 2014 program, which was meant to expand on DACA to include the parents of children who were born in the US or of children who have become legal permanent residents of the US. That program is known by the acronym DAPA (Deferred Access for Parents of Americans and Lawful Permanent Residents).


Both programs were designed in part to encourage people to come out of the shadows, submit to a background check, pay certain fees, get work authorization, and be counted by the US government, according to Solicitor General Verrilli.


He said the injunction is causing continuing harm to undocumented immigrants who are unable to live their lives openly in the US.


“It will force millions of people … to continue to work off the books, without the option of lawful employment to provide for their families,” Verrilli wrote. “And it will place a cloud over the lives of hundreds of thousands of people who came to the United States as children, have lived here for years, and been accorded deferred action under the 2012 DACA policy.”


Both sides eager for a decision


The president’s executive action promising to protect from deportation several million of an estimated 11.3 million unauthorized immigrants currently in the US is particularly popular in the Latino community – including with Latino voters.


A high court decision upholding the president’s action would provide a substantial boost to Democratic candidates nationwide in the final months before the November election.


In contrast, the Republican front-runners for that party’s nomination have stressed their opposition to the Obama plan and the need to more strictly enforce immigration laws and control national borders. Some political analysts have warned that they risk alienating Latino voters.


Advocacy groups on both sides of the issue praised the high court’s decision to take up the case.


“We applaud the Supreme Court for appropriately reserving time on its docket to decide this critical case before the current term ends in June,” Elizabeth Wydra, chief counsel with the Constitutional Accountability Center, said in a statement. 


“The president’s program has been delayed for far too long by this political lawsuit and the clearly erroneous decisions of the lower courts,” Ms. Wydra said. “The lives of millions of children and families in America have been disrupted and held in limbo – a situation the president’s action was designed to alleviate – and they deserve the court’s careful and prompt attention.”


Carrie Severino, chief counsel at the Judicial Crisis Network, says the case presents an important opportunity for the justices to examine President Obama’s abuse of executive power.


“Only Congress can rewrite the immigration laws. The Obama Administration has a long history of trying to get its way undemocratically, and this case is no different,” she said in a statement.


“The Supreme Court has already blocked many of President Obama’s power grabs,” she said. “This case will give the court yet another chance to do so.”

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