By Lyle Denniston
February 5, 2016
Like every other independent nation, America has the right to decide who comes into the country, to stay or just to visit. But because the borders are not tightly sealed, many foreign nationals enter without official permission and remain. Once here, many of them live in what President Barack Obama has called “a shadow world,” constantly in fear of being deported and so unable to live normal lives. There are now more than eleven million of these illegal immigrants.
What to do about them as a matter of national policy is a problem stalled in deep disagreement. The Senate has passed a broad reform bill that the president would have signed, but that measure died in the House of Representatives. Twice — once in June 2012, and again in November 2014 — the president and his aides used what they believe were existing powers of the executive branch to draft programs that would postpone deportation of many of these immigrants, allowing them to remain at least for a few years, to get jobs, and to qualify for some public benefits. Both programs are highly controversial, and the entire issue of immigration control is at the center of this year’s presidential election campaign.
The 2012 program has been in operation, and ultimately may clear the way for some 1.2 million younger immigrants to remain. The 2014 program — potentially affecting more than four million immigrants — has never gone into effect, because twenty-six states, led by Texas, sued the federal government in a federal trial court in Brownsville, Texas, and the 2014 program and some changes in the 2012 program have been blocked since last February. That is the case, now usually called United States v. Texas (although twenty-five other states are also involved), that the Supreme Court agreed on January 19 to review.
The case has never gone to a full trial in the federal court in Brownsville, because the Obama administration appealed to the Supreme Court to challenge temporary orders of that Texas judge and of the U.S. Court of Appeals for the Fifth Circuit barring enforcement until a trial could be held. Appeals are often allowed to test such orders, even if they are only temporary. The administration asked the Supreme Court to arrange for the case to be decided during the current Term of the Court, and the Court agreed. That means that a hearing will be held in April and that a decision is likely to be issued by late in June or early in July.
As filed by the government, the case raised three issues:
First, do state governments have a right to sue the federal government to challenge how it enforces — or fails to enforce — a federal law? That is a question under the Constitution’s Article III, which limits federal courts to deciding only “live” cases or controversies in which federal agency conduct has harmed someone directly.
Second, does the 2014 program and the expansion of the 2012 program go beyond the powers that Congress has given to the president and his aides under federal immigration laws — or, in other words, did President Obama need Congress’s new approval before going ahead with the new programs?
And third, are the programs illegal under federal law because the general public was not given a chance to react to them before they were adopted?
When the Court agreed last month to hear the case, it added a constitutional question that the challenging states want answered: did the president violate the constitutional command that he carry out federal laws “faithfully”? Although that command has been in the Constitution since the beginning in 1789, the Supreme Court has never spelled out in a full and final way what that does to limit the president’s choices about how to enforce existing law. (The Court did not agree to rule on another constitutional point that the states had raised: whether the government programs violated the separation of powers by, in effect, enacting new laws, which is Congress’s job.)
On the first question being reviewed, the government argues that the states should be barred from suing the federal government in a dispute over enforcement of a federal law, because the states cannot show that they are harmed by the government’s use of its discretion. The states argue that harm to only one state is enough to allow a group of them to sue, and, in this case, Texas would be injured by having to spend millions of dollars in arranging for driver’s licenses for immigrants allowed to remain in the U.S.
On the second question, the government contends that it acted well within the scope of existing immigration laws, because the executive branch must have the authority to use discretion in what it can do and the resources it has available to implement a law like those already on the books governing deportation. Delaying deportation has been done in the past, and the new program is actually not that different from those episodes, the government contends, adding that there is no way as a practical matter that it could carry out the deportation of upwards of eleven million people. The states counter that Congress has set the specific terms for enforcing the laws governing deportation, and the executive branch has no choice but to implement those terms. They also argue that discretion should be used only on a person-by-person basis, not on the mass scale of four million or more immigrants.
On the third question, the government contends that its use of discretion about whom and when to deport is not subject to the law requiring advance notice to the public and a period for the public to react before implementation. The states respond that the use of such widely sweeping discretion amounts to such a change in the enforcement of existing laws that the public must be made a part of the review process.
The government had tried to persuade the Court not to take on the constitutional question about whether President Obama had “faithfully” carried out existing immigrant laws, because, it said, the states’ argument on that point overlapped with its argument on the second question in the case. The states assert that Obama has essentially abdicated his duty to implement existing laws in keeping with what Congress had ordered, so he has violated the Take Care Clause.
The core task before the Court, in answering all but the first question, will be to examine what existing law dictates about deportation, and then compare that to the terms of the Obama programs — especially the 2014 program. But underlying that exercise are two fundamental structural questions about American government: when does the executive branch have the option of choosing how it applies a law passed by Congress, without violating Congress’s basic power to legislate, and when does Congress have the authority to take away that discretion, without intruding on executive authority?
President Obama has been candid in saying that he moved ahead on both the 2012 and 2014 programs because something had to be done, at a humanitarian level as well as an efficiency-of-government level, about the situation involving the millions of illegal immigrants, and Congress had not done its part by addressing those problems with new legislation. The president’s critics have reacted by arguing that the delayed deportation programs are just another part of Obama’s style of governing by going it alone rather than in a joint enterprise with Congress.
The earlier program, announced in June 2012, is formally named “Deferred Action for Children Arrivals,” or “DACA.” That program is carried out on a person-by-person basis; eligibility is limited to those who can pass a background check, had come to the U.S. before the age of eighteen and were now no older than thirty, had lived in the U.S. for at least five years prior to June 2012 and remained in the U.S. when applying for deferral, were currently in school, had graduated from high school or received a certificate equal to a high school diploma (or had an honorable discharge from the U.S. military), had no convictions for serious crime, and posed no threat to national security or public safety.
If an individual is found eligible to remain, he or she can get permission to stay for two years, to get a job, and get a driver’s license if eligible under state law.
That is the 2012 program as it is now in effect and to which more than 600,000 immigrants have applied. Not in effect yet, because of the lower court orders blocking enforcement, were changes in the DACA program allowing eligibility up to age thirty-one and allowing the period of remaining to extend to three years.
The 2014 program, announced fifteen months ago, is formally named “Deferred Action for Parents of Americans and Lawful Permanent Residents,” or “DAPA.” To be eligible to remain in the U.S., an individual would have to have a son or daughter who was a U.S. citizen or permanent resident alien as of November 2014, have lived in the country in November 2014 and when he or she applied, have no lawful immigration status as of November 2014, not be a law enforcement priority under immigration policy on who could stay or had to be deported, and present “no other reason making deferred action inappropriate.”
If accepted for deferred action, such an immigrant would not be guaranteed a path to citizenship, but would qualify for “lawful presence” in the U.S. for three years (a period which could be renewed), and would be eligible for Social Security benefits, Medicare, and some other public benefits, and could apply for a work permit.
After Texas and the other twenty-five states sued, U.S. District Judge Andrew Hanen in Brownsville issued a temporary order on February 15 of last year temporarily blocking DAPA and the changes in DACA based on findings that Texas did have a right to sue, and that the challengers were likely to win at trial on their claim that the new programs should have been put up for public reaction. The order blocking implementation was applied nationwide.
Last November, a three-judge panel of the Fifth Circuit, dividing two to one, upheld the temporary order against enforcement, but went further than Hanen and concluded that the challengers were likely to win at trial not only on the public reaction point, but also on the point that the executive branch had used powers that it did not have under existing immigration laws.
Neither Hanen nor the majority of the Fifth Circuit issued any ruling on the constitutional question about whether the president had failed to execute existing laws faithfully.
For more information, go to: www.beverlyhillsimmigrationlaw.com