Civil and Human Rights

Obama administration takes immigration battle to Supreme Court

A Supreme Court ruling on an issue as politically explosive as immigration could be a potential grenade in the 2016 presidential elections.




The Obama administration took the battle over immigration to the Supreme Court on Friday, formally asking the justices to review a federal court decision that left in place a nationwide injunction against President Barack Obama’s sweeping initiative to grant quasi-legal status and work permits to millions of immigrants here illegally.


“A divided court of appeals has upheld an unprecedented nationwide injunction against implementing a federal immigration enforcement policy of great national importance, and has done so in violation of established limits on the judicial power. If left undisturbed, that ruling will allow States to frustrate the federal government’s enforcement of the Nation’s immigration laws,” Solicitor General Donald Verrilli and other administration lawyers wrote in the petition filed at the high court Friday morning. “The decision warrants immediate review.”


The petition from the Justice Department was filed precisely one year after Obama announced the controversial executive actions.


Verrilli said the ruling against the administration earlier this month “will force millions of people—who are not removal priorities under criteria the court conceded are valid, and who are parents of U.S. citizens and permanent residents—to continue to work off the books, without the option of lawful employment to provide for their families. 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” an earlier version of the “deferred action” program Obama created in 2012 and sought to expand last fall.


The administration had been under pressure to quickly take the immigration issue to the Supreme Court, since there is only a small window of time for the nine justices to agree to hear the case this term. If the Supreme Court doesn’t take up the case or allows it to slip to the court’s next term, Obama’s immigration initiatives will remain in limbo until he leaves the White House — leaving the fate of the programs up to his successor.


“The court can easily hear this case in the current term, which is important given both the case’s significance and the fact that the lower courts have blocked the president’s action from going into effect,” said Brianne Gorod, appellate counsel for the liberal Constitutional Accountability Center and former clerk to Justice Stephen Breyer. “In fact, given the court’s normal procedures, it would risk the appearance of engaging in politics if the Court didn’t hear the case this term.”


Meanwhile, a Supreme Court ruling on a politically explosive issue like immigration could toss a grenade into the 2016 presidential elections. Republican candidates have denounced Obama’s program as an abuse of executive power and vowed to revoke it; Democratic hopefuls have all pledged to expand the actions.


Obama’s most recent round of executive actions on immigration, which could affect more than 4 million immigrants here illegally, have been on hold since a February order from U.S. District Court Judge Andrew Hanen in response to a lawsuit from Texas and 25 other states who sued Obama over the programs soon after they were announced last year.


Hanen’s order blocking the actions was largely based on technical reasoning; he ruled that the immigration programs should have gone through an official notice-and-comment process before they were allowed to proceed. The George W. Bush appointee also agreed with the states that they would suffer as a result of Obama’s actions — such as the costs incurred by Texas by providing driver’s licenses to immigrants with new, quasi-legal status — and subsequently had standing to sue.


The New Orleans-based 5th Circuit upheld Hanen’s ruling earlier this month. And the 2-1 majority went further and ruled that the Obama administration actually lacks the legal authority for the sweeping executive actions.


“Even with ‘special deference’ to the Secretary, the [Immigration and Naturalization Act] flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization,” wrote Judge Jerry Smith, an appointee of President Ronald Reagan, for the majority.


Asked about the federal government’s move at the Supreme Court, a spokeswoman for Texas Attorney General Ken Paxton expressed confidence in the prior court rulings blocking the Obama actions.


“Three times federal courts have ruled in our favor, and we stand ready to continue defending the rule of law against the president’s unconstitutional use of executive power,” spokeswoman Cynthia Meyer said, referring to Hanen’s ruling, a 5th Circuit ruling declining to stay his decision pending appeal, and the recent ruling turning down the Justice Department’s appeal.


Frustrated by a Congress that stymied his goal of immigration reform and under heavy lobbying from immigration advocates, Obama took expansive steps last November to stop deporting millions of immigrants here illegally but who have children who are U.S. citizens or green card holders.


The 2014 actions, called Deferred Actions for Parents of Americans, came on top of a similar 2012 directive from Obama that gave those protections to young immigrants brought here illegally. Last year’s executive action announcement also expanded the 2012 program, called Deferred Action for Childhood Arrivals.


Those actions last year only enraged congressional Republicans, who noted that Obama repeatedly said he lacked the authority to circumvent Capitol Hill on deportations. The GOP-led Capitol unsuccessfully tried to block Obama’s executive actions earlier this year, but almost choked off funding to the Department of Homeland Security instead before Republicans ultimately relented.


Immigration activists have been pressuring the judicial system the last several weeks, suspecting that the conservative Fifth Circuit had intentionally dragged its feet on issuing its ruling to jeopardize the case’s prospects of making it to the Supreme Court this term. They’ll continue that advocacy Friday; families who could be affected by Obama’s executive actions plan to rally outside the Supreme Court in an event organized by CASA de Maryland and other advocacy groups.


The 26 states suing the Obama administration have 30 days to respond to the Justice Department petition. Barring any extensions or delays, the justices could announce by mid-January whether they will hear the case. If they agree to do so, it could be argued in early April and decided by June.

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