Council on Foreign Relations
By: Jonathan Masters
March 8, 2016
In the summer of 2016, the U.S. Supreme Court is expected to weigh in on one of the most contentious issues in American politics: illegal immigration. In deciding United States v. Texas, the high court could lift the specter of deportation hovering over millions of undocumented immigrants living and working in the United States. The case pits the Obama administration against more than two dozen U.S. states that claim the president’s so-called deferred action programs are an abuse of executive authority.
The administration and its supporters say President Barack Obama’s programs, unveiled in 2014, are similar to those of past administrations and that, given congressional gridlock on immigration reform, they are necessary to pull millions of hard-working people out of the shadows. Mass deportation would not only be logistically impossible but unethical, they say.
Opponents say the president is ignoring the will of Congress and attempting to rewrite the nation’s immigration laws by other means. If the deferred action programs are allowed to proceed, they will only encourage more illegal immigration and saddle many state governments with the massive cost of providing services to these immigrants, critics say.
What’s at stake in this case?
Two of Obama’s deferred action programs hang in the balance. The first is actually an expansion of an existing program, known as Deferred Action for Childhood Arrivals (DACA), which launched in 2012 and provides two years (four if renewed) of deportation relief and work visas to qualified immigrants brought to the United States illegally before their sixteenth birthday. Under the proposed expansion, DACA would be granted for three years instead of two, and more immigrants would be eligible.
The second, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), was unveiled in late 2014 to provide similar benefits to undocumented parents of U.S. citizens and permanent residents.
Collectively, the programs could grant temporary reprieve to more than four million out of a total estimated 11 million undocumented immigrants living in the United States.
The president moved forward with these programs only after Congress repeatedly failed to pass comprehensive immigration reform legislation that, among other things, would have provided a path to citizenship for much of the undocumented population.
But many critics warn that if the Supreme Court allows the deferred action programs to stand, there would be little to prevent future presidents from circumventing Congress on other controversial issues.
Are the deferred action programs operational?
DAPA and the expansions to DACA have been put on hold by the courts, as discussed below. However, the existing DACA program, which launched in 2012, is not at issue in this case and continues to grant applications. As of September 2015, the Department of Homeland Security has approved initial DACA applications for nearly seven hundred thousand people. The overwhelming majority of these immigrants are from Mexico.
Have past U.S. presidents granted deportation relief?
Yes. Every president for the last half century has granted some form of temporary deportation relief, most often to groups of asylum seekers. For instance, President Ronald Reagan in 1987 exempted some two hundred thousand Nicaraguan exiles from deportation and granted them work visas.
But the executive action that many immigration experts often cite as similar to what Obama is attempting is the so-called Family Fairness program put in place by President George H.W. Bush in 1990. A law signed by Reagan four years earlier—the Immigration Reform and Control Act—provided millions of undocumented immigrants a path to legalization but excluded many of their spouses and children. Bush’s program extended temporary deportation relief to these 1.5 million family members until Congress was able to codify it in another immigration reform bill months later. (During that period less than 50,000 reportedly applied.)
How did this case get to the Supreme Court?
Texas and two dozen other states, most led by Republican governors, sued the Obama administration for failing to enforce the nation’s immigration laws after the president moved to expand DACA and create DAPA in late 2014. They successfully applied to have a Texas federal judge block the programs until the case worked its way through the courts, a decision the Obama administration twice appealed.
In late 2015, the White House petitioned the Supreme Court to review the injunction, and the justices agreed. Oral arguments will be heard in spring 2016, and a decision is expected by summer.
What are the questions before the Supreme Court?
Justices are expected to consider three main questions:
1) Do Texas and the other states have standing to sue the federal government? In other words, can the states demonstrate that the president’s programs, if implemented, would cause them significant financial harm? The appellate court in this case—the Fifth Circuit Court of Appeals—found the states had legal standing.
2) Do the deportation deferral programs in question violate federal immigration law and/or the Constitution? This boils down to the question: How much discretion does the executive have in enforcing Congress’ laws? The appellate court said the president’s programs violated the law, but it did not rule on the constitutional question.
3) Did the deportation deferral programs need to be submitted to a mandatory public notice-and-comment period? The lower court held that they did.
What is the states’ position?
The states essentially claim the answer is “yes” to all three questions and recommend the justices uphold the lower court’s ruling.
On the first issue, they claim the Obama administration’s programs would force state governments to spend hundreds of millions of dollars on health care, education, law enforcement, and other public benefits associated with the immigrants receiving relief. For instance, Texas could assume up to $500 million in administrative costs for issuing new driver’s licenses, they claim.
On the second question, they concede that while the president does have some discretion in how he enforces the law, including the power to defer deportation on a case-by-case basis, he does not have broad powers to grant legal status and work authorization (PDF) to whole categories of people, particularly when “Congress has created a detailed, complex statutory scheme for determining when an alien may lawfully enter and be present in this country.” The states say that, with these deferred action programs, the president is disregarding the will of Congress and violating his constitutional duty to “take Care that the Laws be faithfully executed.”
Third, the states claim that the programs are also unlawful because the White House did not subject them to a period of public notice-and-comment as required by the Administrative Procedures Act (APA).
What is the Obama administration’s position?
The administration wants justices to lift the lower court’s injunction for the following reasons: First, the White House claims that Texas and the other states do not meet the legal threshold to sue the federal government because, among other things, the states could avoid the alleged financial costs by simply choosing not to provide the relevant benefits (e.g., driver’s licenses). Moreover, if the justices grant states standing in this case, it would likely open the floodgates for federal-state court battles across a range of political issues, the Obama administration says.
On the second question, the administration claims that its deferred action programs are lawful because the executive branch (in this case, the Department of Homeland Security) has expansive discretion over how it administers the nation’s immigration laws, especially since the agency has scarce financial resources. “Congress has appropriated the funds to remove only a fraction of the [undocumented] population in any given year,” the administration said in its petition (PDF). Moreover, past administrations, both Democratic and Republican, have implemented similar deportation relief programs, the White House says.
Lastly, the administration says it did not have to submit the programs in question to public notice-and-comment because they represent a general statement of enforcement policy, which is exempt from the APA.
Is this the first time states have sued over illegal immigration?
No. In the mid-1990s, Arizona, California, Florida, New Jersey, New York, and Texas separately sued the Clinton administration for failing to enforce immigration laws. In some of the lawsuits, states claimed the federal government was obligated to reimburse them billions of dollars for providing public services—like health care and education—associated with their large populations of unauthorized immigrants. However, all were unsuccessful. Arizona sued the federal government unsuccessfully once again in 2011. Mississippi did so, also to no avail, in 2012.
Must the court weigh in on all the questions in this case?
No, and it often doesn’t. Many may want the court to weigh in on the larger issues of enforcement discretion and separation of powers (Question 2), but justices have at least three avenues to avoid doing so:
1) To find that the states lack standing (Question 1), which would be a victory for the Obama administration.
2) To find that the deferred action programs are simply unreviewable, which would also be a win for the president.
3) To rule narrowly that the programs are subject to the APA’s notice-and-comment requirements (Question 3), which would be a partial victory for the states, at least further delaying if not derailing the programs altogether.
What if the court is evenly divided?
The death of Justice Antonin Scalia in February 2016 has opened the possibility of the court splitting 4-4 on some of its remaining cases in the 2015 term. In such a scenario, the court has generally done one of two things. One, it has simply affirmed the lower court’s ruling without issuing a precedent-setting opinion, which would be a win for the states in this case. This last occurred in 2011.
Alternatively, the eight-member court might order the case to be reargued once a new justice who could break the court’s deadlock is sworn in. Legal historians point to the 1970 term, when the court had seventeen cases reargued following the surprise resignation of Justice Abe Fortas in 1969.
For more information, go to: www.beverlyhillsimmigrationlaw.com