Immigration and Citizenship

Texas Immigration Case Sparks Appeals to Justices

Backers of Obama’s plan say halting deportations helps families and businesses.

By Marcia Coyle

As presidential contenders from both parties wrangle over how best to thwart illegal immigration, the challenge to President Barack Obama’s plan to delay deportation of about 5 million of those immigrants soon moves center stage at the U.S. Supreme Court.

Supporters of the president’s plan last week filed nearly two dozen friend-of-the-court briefs highlighting adverse consequences of a ruling against the program, and that also show the benefits to businesses, law enforcement and social welfare if the justices allow Obama to halt the deportations.

Texas and 25 other states sued to stop the program, arguing that Obama exceeded his powers under immigration laws, and a federal appeals court last year upheld an injunction that blocks enforcement.

Despite the vacancy on the high court following the death of Justice Antonin Scalia, supporters of Obama’s plan express confidence that a majority will rule for the administration.

“We think we have very strong legal arguments that appeal to the more conservative and more liberal justices,” said Elizabeth Wydra, president of the Consti­tutional Accountability Center. It filed a brief on behalf of 19 bipartisan former members of Congress who served when key components of the federal immigration laws were drafted and enacted.

“If you look at Chief Justice [John] Roberts and Justice [Anthony] Kennedy and the opinions they joined emphasizing broad [executive] discretion in previous precedents, we’re hopeful they would vote to unfreeze the programs,” she said, adding, “I don’t think this is one of those cases where Justice Scalia’s vote would be determinative.”

The high court has scheduled arguments in the immigration case on April 18. As one amicus brief writer noted: “This case has all the trappings of an epic political battle.”

The case involves challenges to an executive action, called a “guidance,” affecting two programs: one an extension of a program created in 2012, and the other, a new program created in 2014.

The government seeks to extend the program known as DACA — Deferred Action for Childhood Arrivals. Children who came to the United States before they were 18 and are now no older than 31 can get, if they meet other eligibility requirements, a delay of deportation for three years, a job and a driver’s license if state law allows.

The new program is known as DAPA — Deferred Action for Parents of Americans and Lawful Permanent Residents. Those immigrants must have a child who is a citizen or permanent resident alien as of November 2014; must not be a law enforcement priority under current immigration policy; and must meet other eligibility requirements in order to receive deferred action for a renewable three years.

In February 2015, U.S. District Judge Andrew Hanen in Brownsville, Texas, imposed a temporary injunction blocking the extended immigration programs. He ruled that Texas alone had standing to sue because the state would incur increased costs in issuing driver’s licenses and that it was likely to prevail on its claim that the Department of Homeland Security should have issued the new guidance for notice and public comment as required by the Administrative Procedure Act.

A 2-1 panel of the U.S. Court of Appeals for the Fifth Circuit upheld his injunction and also ruled Texas was likely to succeed on its claim the president had exceeded his authority.

Four Questions

The justices will consider four questions: Does Texas have standing to sue; did the “guidance” exceed the president’s power; was the guidance invalid because it failed to meet notice-and-comment requirements; and does the guidance violate the Constitution’s “take care clause.” The clause requires the president to “take care that the laws be faithfully executed.”

As he successfully did three years ago in the same-sex marriage case Hollings­worth v. Perry, former acting Solicitor General Walter Dellinger of O’Melveny & Myers, as an amicus now, tackles whether Texas has standing. In 2013, Dellinger argued in Hollingsworth v. Perry that supporters of California’s ban on same-sex marriage did not have standing to appeal a federal court decision striking down the ban. The high court, in a 5-4 opinion, agreed.

This time, Dellinger, in a brief written by Joseph Palmore of Morrison & Foerster, contends Texas lacked standing because the injuries asserted by Texas and the other challengers are “both self-imposed and non-concrete.” He also says the policy they challenge is a “quintessential case” of lawful federal enforcement discretion. The dispute “must be left to the political process.” He said a contrary ruling would insert the court into the current “political maelstrom.”

Boris Bershteyn of Skadden, Arps, Slate, Meagher & Flom authored a brief, in support of Obama’s plan, on behalf of 63 U.S.-based employers, business leaders and organizations representing business interests. He lays out how restrictive immigration enforcement policies contribute to labor shortages and losses of billions of dollars to industries, such as agriculture and construction.

“These businesses are coming to the court because their long-term success in the global economy depends on the vitality of the U.S. workforce,” said Bersh­teyn. “The failure of the political system has made it harder for U.S. businesses to compete in the global market economy.”

Other briefs come from 16 states, more than 100 mayors and county executives, 186 members of the U.S. House of Representatives and 39 U.S. senators, administrative law scholars, law enforcement organizations, faith-based organizations such as the U.S. Catholic Conference, and national immigration organizations.

Still to come: Texas’ response on the merits and briefs from its supporters.

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