The Supreme Court set the stage for what could be a landmark ruling on immigration law and presidential power when it agreed Tuesday to decide whether President Obama has the authority to offer a “lawful presence” and a work permit to as many as 5 million immigrants living in the country illegally.
The decision is likely to come this June in the middle of the 2016 presidential campaign, in which the question of how to cope with the nation’s immigration problem has deeply divided the two parties. Some leading Republican candidates have called for deporting immigrants and building a wall with Mexico, and Democrats have vowed to go even further than Obama in helping those here illegally come out of the shadows.
At issue for the court is whether current law gives the president power to temporarily shield millions of longtime immigrants from deportation. At the request of Texas state lawyers who are suing to block the president’s program, the justices also agreed to decide whether Obama violated his constitutional duty by failing to “take care that the laws be faithfully executed.”
If the court rules that Obama overstepped his authority, it would send the message that only Congress can change and reform the nation’s immigration laws. On the other hand, justices have given the executive branch broad discretion in setting deportation policy.
Even if Obama wins, he may run out of time to fully implement the program before leaving office, making it easier for a future GOP president to unwind it. Under the best-case scenario for the president, he would have six months to implement the program — enough time to process a few hundred thousand applications, experts estimate.
That could leave the next occupant of the Oval Office with a backlog of millions of applications from anxious immigrants. Democratic candidates Hillary Clinton and Sen. Bernie Sanders would almost certainly continue the program, but Republican front-runners Donald Trump and Sen. Ted Cruz of Texas could face a dilemma.
By making good on promises to be tough on amnesty for immigrants here illegally, a future GOP president would be faced with the prospect of deporting people who voluntarily came forward to follow the rules — a dramatic and memorable moment to begin the new presidency.
White House Press Secretary Josh Earnest downplayed concerns about whether there would be enough time to set the president’s directives in motion. The experience of implementing previous immigration programs suggests that a lot of people would rush to sign up, he said. Eligible applicants “would take advantage of the benefits as soon as they possibly could,” Earnest said Tuesday during his daily briefing with reporters.
Obama unveiled his sweeping immigration program last year. It would temporarily suspend deportation for as many as 4 million immigrant parents of U.S. citizens. This so-called Deferred Action for Parents of Americans, or DAPA, was patterned after a 2012 plan, Deferred Action for Childhood Arrivals, which offered similar relief to about 600,000 young people who had been brought into the country illegally as small children.
Several hundred thousand additional immigrants were to qualify for deportation deferral under a separate expansion of the DACA program that Obama announced in November 2014.
Obama said he was taking executive action as a last resort amid congressional deadlock. In 2013, the Senate passed a bipartisan immigration overhaul on a 68-32 vote, but House Republican leaders refused to bring the bill to a vote.
Administration officials also noted that the government has limited funds to track down immigrants here illegally, and the president’s program would focus enforcement efforts on deporting criminals, gang members and national security threats.
But lawyers for Texas and 25 other Republican-led states sued in a federal court in the border town of Brownsville, Texas, arguing the president had overstepped his authority.
This “assertion of unilateral executive power” violates the Constitution's separation of powers, said Texas Solicitor Gen. Scott Keller. If Obama can defy Congress and decide on his own not to enforce the laws against illegal immigration, future presidents could decide on their own not to enforce laws on the environment, taxes or civil rights, he said.
A federal judge in Texas and the U.S. 5th Circuit Court of Appeals in New Orleans agreed, blocking the president’s program from taking effect and prompting the Obama administration to appeal to the Supreme Court.
Lawyers for California, Illinois, New York and 12 other mostly Democratic-led states joined in support of Obama. California Atty. Gen. Kamala Harris on Tuesday said the court’s decision to hear the administration’s appeal “means that millions of hardworking immigrants — including 1.2 million Californians — will finally have their day in court,” she said.
U.S. Solicitor Gen. Donald Verrilli Jr. said that the Texas judge and New Orleans appellate court had no legal basis for blocking the president’s proposal and that the Texas lawsuit should be thrown out because immigration enforcement is a matter for the federal government. The states have no authority to set their own immigration policy, Verrilli argued in court papers, and the DAPA order “does not regulate states or require states to do (or not do) anything.”
The case could turn on a procedural issue of “standing.” Verrilli said Texas had cited no “injury” in its lawsuit, except for the state's cost of providing driver’s licenses to immigrants. But Verrilli said that because Texas chose on its own to partially subsidize the cost of issuing licenses rather than ask applicants to bear the entire cost, the state cannot now use this policy as the basis for its complaint.
The appellate court ruled that the cost of issuing the licenses was sufficient to give Texas standing.
States had not fared well when seeking to influence immigration policy. Three years ago, the justices rejected key provisions of an Arizona law that would have empowered Arizona police to stop, question and arrest people who could not show they were citizens. By a 5-3 vote, the justices said the president and his executive officers have “broad discretion” over immigration policy, including enforcement and deciding who should be arrested and deported.
The two sides in the legal fight even disagree on how to describe the orders at issue. Obama's lawyers say the DAPA order is mere “guidance” and “a general statement of policy,” not an official regulation. Moreover, no immigrant would have any legal rights and their lawful presence would be determined on a “case-by-case basis.”
Texas lawyers say Obama is seeking “one of the largest changes in immigration policy in our nation's history” affecting potentially millions of people. They concede federal agents may spare certain people from deportation, but giving such a large group a lawful presence and work permits amounts to changing the law. “There is no constitutional or statutory authority for such a change,” they said.