The Supreme Court agreed Tuesday to decide a case that would determine whether President Barack Obama can implement his immigration executive actions before he leaves office.
If the justices side with Obama, his administration could have a chance to roll out policy changes announced in November 2014 that would affect millions of undocumented immigrants. The actions would defer deportation for undocumented immigrant parents of U.S. citizens and legal residents, under a program known as DAPA. The actions would also expand a similar program, called DACA, for undocumented immigrants who came to the United States as children.
The court will likely hear arguments in the case in April and issue a ruling late in June, in the heat of a presidential election in which executive actions on immigration could play a big role.
The administration wants the Supreme Court to reverse a federal appeals court's decision to block implementation of the executive actions nationwide. Texas and 25 other states brought the lawsuit challenging Obama's authority to make the policy changes.
A three-judge panel for the U.S. Court of Appeals for the 5th Circuit in New Orleans, in a 2-1 decision in November, declined to lift an injunction issued in that lawsuit by U.S. District Court Judge Andrew Hanen.
The injunction maintains the status quo on national immigration policies until the legal challenge from the states is decided, likely well after Obama leaves office in January 2017. The Supreme Court could allow the administration to implement the policies.
The Supreme Court agreed Tuesday to decide whether states have the legal right to challenge the executive actions and whether the actions were lawful. The court on Tuesday added to the case its own question: Do the Obama administration’s actions violate the Take Care clause of the constitution found in Article II? The clause instructs the president to faithfully execute the law.
The Supreme Court’s decision to hear the case, made behind closed doors, means at least four of the nine justices voted to do so. The case is United States v. Texas, et al., Docket No. 15-674.
The 5th Circuit majority wrote that Texas has a legal right to challenge the federal government’s actions because states could face millions of dollars in costs if the immigrants obtained driver's licenses and other benefits. The 5th Circuit decision also rejected the administration’s argument that the injunction should not apply nationwide, in part because beneficiaries would be free to travel between states that were or were not under the injunction.
The Obama administration lawyers, in its petition to the Supreme Court, said that leaving the injunction in place would allow states to frustrate the federal government’s enforcement of immigration laws.
“It 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,” the Justice Department 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, which respondents have never challenged.”
Even if Obama gets a chance to implement the executive actions, they might be in effect only until the next president takes office in January 2017. The next president could revoke or change the actions. Many undocumented immigrants might be leery of identifying as such with the government to get benefits that might soon be taken away.
Democratic lawmakers supported the Supreme Court’s decision and expressed optimism that the court would let the Obama administration implement immigration the policy changes.
“President Obama’s executive actions rely on well-established constitutional authority, and I have full confidence that the Supreme Court will rule that these programs can be implemented,” Minority Leader Sen. Harry Reid, D-Nev., said in a written statement. “President Obama’s decision to set enforcement priorities focused limited resources on the removal of individuals who pose a threat to our national security and public safety, not hard-working families.”
Sen. Richard J. Durbin, D-Ill., said in a written statement that the lower courts’ rulings to halt the executive actions were “cruel.”
"But the Supreme Court has been clear that presidents have the authority to set federal law enforcement priorities as President Obama has with DACA and DAPA, and I’m confident the ruling will be overturned so that millions of families can come out of the shadows and our government can focus on deporting serious criminals,” Durbin said.
On the other side of the issue, a group of 113 members of Congress will file an amicus brief in the case urging the court to rule against Obama’s executive actions, a legal group announced Tuesday.
The attorney for the group of 25 senators and 88 representatives — led by Republican Sens. John Cornyn and Ted Cruz of Texas and Reps. Robert W. Goodlatte of Virginia and Lamar Smith of Texas — said in a written statement that the case is a landmark case involving separation of powers.
“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,” said Jay Sekulow of the American Center for Law and Justice, who plans to file the brief for the lawmakers. “This Executive overreach is both unlawful and unconstitutional.
“We will be representing members of Congress and thousands of Americans in a brief urging the Supreme Court to uphold the appeals court decision – and put a stop to the impermissible overreach that has been the hallmark of this president,” Sekulow said in a written statement.