In last big test of Obama era, Supreme Court to take up immigration policy
The Supreme Court’s last great case of the Obama era comes before the justices Monday when the administration’s lawyers defend his plan to offer work permits to as many as 4 million immigrants who have been living here illegally for years.
Once again, lawyers for Republican leaders from Congress and the states will be challenging the actions of the Democratic president. And as with past battles over healthcare and same-sex marriage, Obama administration lawyers will need to win over at least one of the court’s more conservative justices.
If the justices split 4 to 4 — a possibility since the death of Justice Antonin Scalia — the tie vote would keep in place a Texas judge’s order that has blocked President Obama’s deportation relief plan from taking effect.
The two sides disagree not only on what is the right outcome, but on what the case is about. One side sees a great constitutional clash over the rule of law in a democracy, while the other sees a narrow regulatory dispute.
The Republicans, in written briefs, portray Obama’s order as a profound threat to the constitutional system. If the president can defy Congress and change the law on his own, the nation has abandoned “a bedrock constitutional principle,” they say.
The House Republicans joined the case on the side of Texas, and if anything, raised the stakes even higher. They described Obama’s immigration order as “the most aggressive of executive power claims” and a threat to “the separation of powers that underpins our very constitutional structure.”
Meanwhile, U.S. Solicitor Gen. Donald Verrilli Jr., the administration’s top lawyer, sought to play down the significance of Obama’s order and defuse the constitutional clash. He said the immigrants who qualify would be offered a temporary relief from deportation that does not “confer any form of legal status.” He cited instances in which Presidents Reagan and George H.W. Bush gave similar relief to large groups of immigrants who were fleeing wars or despotic regimes.
In a separate 2012 program, Obama announced an action that offered relief to young adults who had been brought to this country illegally when they were children. About 700,000 “Dreamers,” as they’re known, have come forward and qualified for work permits under the Deferred Action for Childhood Arrivals. That order went largely unchallenged.
Last year, the 5th Circuit Court of Appeals upheld that order on a 2-1 vote. Administration lawyers appealed, and in mid-January, the Supreme Court said it would decide the case of United States vs. Texas. The justices said they would also consider whether the president violated his constitutional duty to “take care” to see that the laws are “faithfully executed.”
Scalia had once raised such a question in a separate immigration case, and he was seen as the most likely to support that view. But without the conservative justice on the bench, it is hard to see how the court would hand down a broad constitutional ruling rebuking the president.
The justices, led perhaps by Anthony M. Kennedy, could also say the U.S. immigration laws give the chief executive broad power to decide on deportations, including by shielding large groups from being arrested and removed.
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