The Obama administration told the Supreme Court on Tuesday that the Department of Homeland Security is allowed to use broad discretion in deportation decisions because Congress doesn’t appropriate enough money to the agency to fully enforce immigration laws.
The Justice Department brief comes in the high-stakes legal challenge to President Barack Obama’s immigration executive actions announced in November 2014, which could affect millions of undocumented immigrants. Texas and 25 other states sued, saying the policy shift is an overreach of executive power.
Obama's actions are on hold under court order until the Supreme Court decides the case before the end of the term, most likely in June — in the heat of a presidential campaign season. Oral arguments have not yet been scheduled but are expected in April.
The new brief argues in large part that the president’s actions are an extension of a well-established principle that the federal government can’t possibly deport the estimated 11 million undocumented immigrants currently living in the United States.
Instead, the government is using discretion to 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.
That so-called “deferred action” is one of the well-established ways that the department exercises enforcement discretion, the government brief states. And it points out several laws (PL 109-13, PL 103-322, PL 107-56) that Congress passed that refer to deferred actions in immigration, such as a 2005 law allowing states to issue driver’s licenses to immigrants with “approved deferred action status.”
“Limited appropriations make broad discretion a practical necessity,” the government brief states. “Congress has appropriated approximately $6 billion for ‘enforcement of immigration and customs laws, detention and removals, and investigations.’”
Removal numbers have varied depending on circumstances, with the department setting the record for removals in one year in 2013, with approximately 440,000, and over a six-year span, with more than 2.4 million from 2009 to 2014, the government wrote.
“But in any given year, more than 95 percent of the undocumented population will not be removed, and aliens continue to be apprehended at the border or otherwise become removable,” the government states.
The administration wants the Supreme Court to reverse a federal appeals court's decision to block implementation of the executive actions nationwide.
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.
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's decision also rejected the administration’s argument that the injunction should not apply nationwide, in part because undocumented immigrants would be free to travel from states under the injunction to states not under the injunction.
The case is United States v. Texas, et al., Docket No. 15-674.