Supreme Court Will Review President’s Executive Action on Immigration

This April, the U.S. Supreme Court will hear argument in the case of the United States v. Texas.

This is headline news, as the case concerns President Obama’s announcement in 2014 that he will allow certain undocumented persons to obtain legal work authorization and shield them from deportation if (a) they have children who are U.S. citizens or lawful permanent residents and (b) if they can establish physical presence in the United States since January of 2010. It is estimated that this action could impact over 4 million persons living in the United States. The program, described as an exercise of prosecutorial discretion, has been called “Deferred Action for Parents of Americans” (DAPA).

Texas sued the United States government, and was joined by 25 other states, to halt this program. Soon thereafter, 15 other states, and the District of Columbia, filed in favor of the President’s actions. The matter has been making its way through lower courts, with Texas and its cohorts successful so far. The Obama Administration sought Supreme Court review, and now has it.

The Supreme Court will have to determine as a threshold matter whether the complaining states have standing to bring the suit. Basically, to have standing, there has to be an actual conflict to decide, between parties with real interests in the matter. States can’t bring a lawsuit just because they don’t like a federal government policy, particularly when that policy area is typically reserved to the federal government’s discretion, as is the case with immigration. However, so far, the lower courts have found standing, because of various impacts (e.g. driver licensing). The Obama Administration describes these as collateral consequences of State policies, and insufficient to grant standing.

If standing is found, the key question to be decided is whether the Executive Branch has overstepped its authority. Congress makes laws, and the Executive enforces them. The Obama Administration argues that Congress already delegated to it the authority to enforce immigration laws, and the actions are inherently authorized. Further, the Administration points to the lack of funding to complete full enforcement, and describes this as a “tacit acknowledgement” by Congress for the Executive exercise prosecutorial discretion.

Texas et al. acknowledge the concept of prosecutorial discretion, but describe the President’s actions as a sweeping overreach of power. They argue that discretion is to be exercised case by case, and not to whole populations.

There is an administrative law component that the Supreme Court will consider. Specifically, the Court is presented with the question of whether the Department of Homeland Security must go through public notice and comment procedures first, before implementing the action. This District Court judge who originally heard the matter in Texas determined that DHS had violated such procedures, and on this basis enjoined DHS.

Finally, and notably, the Supreme Court asked both parties to address whether the Administration’s announced immigration policy is in violation of the “Take Care Clause” of the Constitution, under which the President must “take care that the laws be faithfully executed.”  One writer for the Washington Post described this as a bombshell.

Supreme Court experts say we can expect oral arguments towards the end of April, and a decision in late June. Both political parties have their national conventions in July.