By Ariane de Vogue
April 15, 2016
In November 2014, President Barack Obama unveiled what he hoped would be a centerpiece of his second term: executive actions meant to bypass congressional inaction and help millions of undocumented immigrants come out of the legal shadows in the U.S.
But a federal court put the skids on the program, blocking it from going forward in February of 2015 and now its future is in the hands of the Supreme Court.
The eight justices on Monday will hear from 26 states and the House of Representatives challenging the administration's moves that could affect some 4.3 million undocumented immigrants.
What is the fight about?
Obama's executive orders installed new policies and priorities regarding the enforcement of federal immigration law. The guidance was meant to enable millions of eligible undocumented immigrants to receive temporary relief from the threat of deportation and to apply for programs that could qualify them for work authorization and associated benefits.
The Obama administration established a process called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) targeting otherwise removable undocumented immigrants. It also expanded program called "Deferred Action for Childhood Arrivals (DACA)" aimed at non-citizens who came to the United States as children. Under the administration's guidance, the qualifying individuals can come forward, pass a background check, pay a fee and apply for the programs.
"We'll bring more undocumented immigrants out of the shadows so they can play by the rules, pay their full share of taxes, pass a criminal background check and get right with the law," Obama said in Nevada after the programs were announced.
At the time, Obama said his moves were in response to congressional inaction on the issue. The Senate's Gang of Eight bill failed in 2013, and the long odds to immigration legislation died when Republicans captured the Senate in November 2014, just weeks before Obama announced his plans.
"As you might have heard, there are Members of Congress who question my authority to make our immigration system work better." Obama said in a radio address that month. " Well, I have one answer for that: Pass a bill. The day I sign it into law, the actions I've taken to help solve this problem will no longer be necessary."
Texas is leading the charge of 26 states challenging the White House. A federal judge sided with the states in February of 2015 and blocked the actions from taking effect. The preliminary injunction, later upheld by a federal appeals court, froze the programs nationwide.
The challengers -- mostly Republican governors and attorney generals -- said the unilateral actions were unconstitutional and they violated a federal law that sets forward how agencies can establish regulations.
Are the states even allowed to sue?
That's the first thing the Supreme Court will consider.
Solicitor General Donald Verrilli argues for the administration that the "Constitution reserves exclusive authority to the National Government to make and enforce immigration policy." He says that if the states are allowed to bring the challenge it would "upend the constitutional design." Furthermore, Verrilli says that the states don't even have the legal right to be in court in the first place because they can't show the concrete injury that would give them standing.
Texas responds that it is hurt financially by having to spend millions of dollars in subsidizing driver's licenses for people who would benefit from DAPA and that's enough to get it in court.
The justices will also look at the Administrative Procedure Act, a federal law that governs how agencies can establish regulations. Texas says the administration failed to follow the proper procedures under the law, and it also argues that the guidance put forward by the administration is contrary to federal immigration laws.
Is it Constitutional?
When the court announced it would take up the case, it added a constitutional question that neither lower court entertained: Did the guidance violate a clause in the Constitution that says the President must "take care" that laws are faithfully executed.
Some court watchers say the court was simply trying to ensure that it had all the arguments Texas had made in the case squarely before it. Others speculate that there were some members of the court who might want to rein in executive action, and those justices added the Constitutional question as a framework to allow them to address the issue. In other words, if the court were to strike down the executive action on Constitutional grounds, it could portend a way to limit executive action in other areas as well.
What does the Obama administration say?
Verrilli argues in court papers that Obama's guidance is a "quintessential exercise of prosecutorial discretion" put in place because limited resources prohibit the Department of Homeland Security from responding to all immigration violations. Verrilli stresses that the guidance does not provide any kind of lawful status under immigration law, and the undocumented immigrants remain removable at any time.
"Deferred action itself reflects nothing more than a judgment that the aliens' ongoing presence will be tolerated for a period of time, based on enforcement priorities and humanitarian concerns, and work authorization enables them to support themselves while they remain," he wrote.
Verrilli is deeply critical of the lower court rulings that he says, threatens "great harm not only to the proper role of the federal courts and to federal immigration law, but also to millions of parents of U.S. citizens and permanent residents, aliens who are the lowest priorities for removal yet now work off the books to support their families."
What do the states say about executive overreach?
The states call the executive actions "an extraordinary assertion of Executive Power."
Texas Solicitor General Scott Keller --the lead lawyer in the case-- argues in court papers that the administration "has unilaterally crafted an enormous program—one of the largest changes ever to our Nation's approach to immigration. In doing so, the Executive dispensed with immigration statutes by declaring unlawful conduct to be lawful."
Keller doesn't challenge the notion of prosecutorial discretion, but instead, he says the administration attempted to change the legal status of the immigrants. To make his point, he refers to the guidance that says the eligible undocumented immigrants would be permitted to be "lawfully present" in the United States.
Keller says that clearing the way for some 4.3 million undocumented immigrants to apply for the programs and become eligible for some types of social security and Medicare benefits is contrary to immigration law. As U.S. District Court judge Andrew S. Hanen put it when he issued a preliminary injunction: "Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits.
What is the House of Representatives doing here?
Last week, the Supreme Court expanded arguments to 90 minutes and gave a lawyer representing the GOP-led House of Representatives 15 minutes to make arguments in support of the States. In briefs, lawyer Erin Murphy calls the administration's position "the most aggressive of executive power claims."
She points out that the executive actions were implemented after the President failed in his attempts to persuade Congress to revise immigration laws. She says that the administration now insists "that the Executive has unqualified discretion to bestow lawful presence, work authorization, and other benefits on the very same class of individuals on which Congress repeatedly has refused to bestow those very same benefits."
Will Scalia's death matter?
The death of Justice Antonin Scalia in February and subsequent eight-member court — half appointed by Republican presidents, half appointed by Democrats, including two by Obama — appears to complicate the case.
To win on the merits, Texas likely would have needed Scalia's vote. Now, as things stand, the best it can hope for is a 4-4 split. Such a ruling would leave the preliminary injunction in place and the issue would go back to the district court where the litigation would proceed, leaving the ultimate fate of Obama's executive actions uncertain as his presidency comes to an end. A future president can move to reverse the actions regardless.
The prospect of a 4-4 split may push the justices to instead rely on standing — which would avoid a formal ruling on the merits of the program one way or the other, but which would, in practice, allow it to go into effect.
When will the court rule?
Although immigration could be the biggest case this term, the justices are also grappling with other cases on issues such as abortion, affirmative action, and health care. When Scalia suddenly died, the Court had to take another look at cases that were heading toward a 5-4 split to see if there might be a more narrow way to rule to avoid deadlock.
A decision in this case will most likely be one of the last rulings of the term, although if the justices are evenly divided we could hear much sooner.
For more information, go to: www.beverlyhillsimmigrationlaw.com