By Josh Gerstein
January 15, 2016
The Supreme Court was scheduled to consider Friday whether to hear a case challenging President Barack Obama's executive actions on immigration, but when the justices issued orders on a variety of cases Friday afternoon, the politically charged immigration dispute was not among them.
The justices are still widely expected to take up the executive-power fight, which could be key to Obama's legacy on immigration.
Friday's closed-door conference was the first such session where the case was teed up for discussion. Recently, the justices have usually announced their decision to hear a case after it has been on the list for at least two such conferences. The votes of four justices are needed to grant review on a particular case.
The Justice Department has asked the court to take up the case and rule on it this term, so a decision could be issued by June. The court could take the case next week and still schedule it for argument this term under normal procedures. If the justices don't decide fairly soon after that, they might have to take some unusual steps to get the case heard and decided before they customarily wrap up decisions in late June.
If the court does decide to take up the case, Obama will have a chance to revive a key legacy item that has been in limbo for nearly a year, since a federal judge in Texas issued an order halting the immigration moves the president announced just after the 2014 midterm elections.
Should the court rule in Obama's favor, his administration will have a relatively short, seven-month window to try to roll out the expanded Deferred Action for Childhood Arrivals program and the new initiative called Deferred Action for Parents of Americans. While advocacy groups are eager to have illegal immigrants apply for the programs, there are questions about how many will do so if they're rolled out so close to the end of Obama's presidency.
The lawsuit the justices have been asked to hear was brought by Texas and 25 other states claiming they would be harmed by Obama's executive actions.
In February, Brownsville, Texas-based U.S. District Court Judge Andrew Hanen issued an injunction barring the Department of Homeland Security from moving forward with the DAPA and expanded DACA programs. Hanen suggested Obama lacked the legal power to undertake such vast changes in the immigration landscape without congressional involvement, but the judge based his ruling on the narrower, more technical ground that the changes were never formally proposed as regulations and put through the public-notice-and-comment process under federal law.
In November, the 5th Circuit U.S. Court of Appeals refused to disturb Hanen's nationwide injunction. The 2-1 decision actually went further than the lower court ruling and held Obama's actions unlawful.
Later that month, the Justice Department asked the justices to take up the case.
Neither the lawsuit nor the injunction directly involve the first version of the DACA program for so-called Dreamers that Obama set up in 2012. However, if the Supreme Court holds Obama did not have authority for his more expansive moves in 2014, the administration would likely have to shut down the earlier program, which has granted quasi-legal status and work permits to about 788,000 people.
For more information, go to: www.beverlyhillsimmigrationlaw.com