Civil and Human Rights

Will Justices Hand Obama a Late-Game Reprieve?

The Supreme Court will weigh in on the president’s authority to defer deportation for millions of immigrants.


By Susan Milligan 


President Barack Obama’s ongoing battle with Congress over executive power just got a final arbiter, with the U.S. Supreme Court agreeing to decide whether the president abused his authority when he moved to extend temporary legal status to certain immigrants.


The high court announcement represents a win for the Obama administration, which had to put its deportation relief programs on hold due to lower court rulings. A decision in favor of the administration could also ease the tension between the president and immigration rights groups upset about recent, unrelated sweeps targeting immigrants in the country illegally, which have reignited a potent and emotional issue and threaten to discourage Latinos whose votes Democrats need in this fall’s presidential election.


“I think it’s great news the court decided to take this up,” says Brianne J. Gorod, appellate counsel at the progressive Constitutional Accountability Center. While critics say Obama exceeded his executive authority by moving to allow certain immigrants without the proper documentation to live and work here without fear of immediate deportation, Gorod says the actions are “entirely lawful.”


“All the president is doing here is what presidents of both parties do all the time to determine how best to implement and enforce existing laws passed by Congress,” Gorod says.


Obama in 2014 announced that his administration would offer deportation relief to parents of legal U.S. residents, even when those parents are here illegally, as long as the individual had been in the country since Jan. 1, 2010, and had a clean criminal record. The program, called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, would allow those individuals to stay in the country legally for a three-year period. The president also expanded the 2012 Deferred Action for Childhood Arrivals program, or DACA – which allows children brought to the U.S. illegally to live and work in the country lawfully – in part by removing an upper age cap on those eligible for the program.


Led by Texas, more than two dozen states sued, saying Obama had gone too far by fundamentally changing immigration law after being unable to get Congress to agree on an immigration reform package. Texas, in particular, argued it would suffer the consequences since it would be forced to incur the costs associated with issuing driver’s licenses to the newly legal residents. Lower courts since have blocked the 2014 programs.


The conflict has become a flash point not just for those enmeshed in the immigration debate, but for lawmakers and scholars feuding over how much power a president is allowed to wield when Congress can’t – or won’t – act. Congressional Republicans have accused Obama of acting like a “king” or “emperor” and say his unilateral actions on immigration, firearms and other matters have depleted any trust they had in the commander-in-chief.


“Our position from the beginning has been very clear: President Obama is not a king and impatient presidents don’t get to change the law. This executive overreach is both unlawful and unconstitutional,” Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, said in a statement.


Gorod says there is a good chance the high court will side with the president when the case is argued in April. While the justices ruled against Obama on another matter involving executive power, striking down several recess appointments the president made to the National Labor Relations Board, the court ruled in Obama’s favor on a politically loaded Arizona immigration law. That law had required legal immigrants to carry registration documents at all times; allowed state police to arrest people without a warrant whom they suspected of committing a crime that would lead to deportation; and made it a crime for an immigrant in the country illegally to hold a job in the state. The Supreme Court invalidated those provisions, recognizing broad authority by the federal executive to make and enforce immigration policy, Gorod explains.


A final decision from the high court is likely to come this year, in the heat of the presidential election.


“The immigrant community, which is an integral economic and social force in this country, deserves a chance to gain legal status,” Tom Jawetz, vice president of immigration policy at the left-leaning Center for American Progress, said in a statement. “DAPA and expanded DACA are important first steps, and we will continue fighting for the community until the unauthorized population as a whole, which contributes to the fabric of this nation of immigrants, has a chance to earn a pathway to citizenship.”

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