President Barack Obama’s effort to revamp immigration policy through executive action after Congress failed to is getting its own scrutiny Monday before the U.S. Supreme Court.
The case, U.S. v. Texas, over deferring deportations of undocumented immigrants, is at the center of a national debate on immigration that is roiling the 2016 presidential campaign.
In a rare 90-minute session, rather than the standard hour-long session, the eight justices will hear a challenge from the state of Texas and 25 other states. (The court only has eight members because of the recent death of Justice Antonin Scalia.)
The DAPA order applying to parents, issued in 2014, never took effect.
The Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, announced in 2014, would allow undocumented parents of children born in the United States or who are legal residents to stay in the country and be eligible for a three-year renewable work permit if they had been in the U.S. since January 2010. It would affect more than 4 million people.
An earlier program, the Deferred Action for Childhood Arrivals program, or DACA, applies to children brought to the United States illegally and is not affected by the court case except for an expansion of the work permit to three years, from two years.
The DAPA order applying to parents, issued in 2014, never took effect. A Texas district court imposed an injunction, and it was upheld by the 5th Circuit Court of Appeals.
“If there’s going to be a change of immigration law, Congress has to be the one to do it,” Texas Attorney General Ken Paxton said in an interview. “For the president to do it, that’s fundamentally a violation of the Constitution.”
Texas is claiming standing in the case because it says it would be “irreparably harmed” by having to process 500,000 additional driver’s licenses at a cost of millions of dollars. It is joined by 25 states with Republican governors.
4 million At least this many people would be affected by Obama’s executive action for parents of U.S.-born children and some legal residents
Texas will be joined in arguing its case by the House of Representatives, which, in a controversial move, voted to side with the states against the Obama administration. Republican senators have separately filed amicus briefs.
The Obama administration will argue that the president has the legal authority to act in the face of congressional inaction. Congress failed to pass comprehensive immigration reform in 2014. The White House’s position is that there is no harm to the states.
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Obama has been increasingly outspoken about the need for the United States to embrace immigration. “We are born of immigrants, that is who we are, immigration is our origin story,” he said in December after attending a naturalization ceremony at the National Archives. “For more than two centuries it’s remained at the core of our national character, it’s our oldest tradition, it’s who we are, it’s part of what makes us exceptional.”
The solicitor general will argue for the United States, giving 10 minutes of the allotted time to a lawyer for a group of undocumented immigrant parents.
The Supreme Court itself added a constitutional issue it wanted the parties to discuss: Do the states have standing to sue the federal government? Would a state be free to sue the government on every policy it disagreed with? There are 15 states, mostly led by Democrats, including Washington and California, who are supporting the administration’s case and argue that Texas’ claim of harm is “illusory.”
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The reality is that the Guidance is lawful, will substantially benefit States, and will further the public interest. In holding to the contrary, the courts below relied entirely on speculative claims of harm by one Plaintiff—Texas.
Supreme Court brief filed by 15 states supporting the Obama administration
The case has been a hotbed of political controversy with Republicans and Democrats.
“What is at stake in this matter is nothing less than an effort to supplant Congress’s constitutional power to ‘establish an uniform Rule of Naturalization.’ Such an action stands in stark contravention to federal law and to the constitutional principle of the separation of powers,” the GOP senators, led by Senate Majority Leader Mitch McConnell, R-Ky., said in a brief filed at the court. Sen. Ted Cruz, R-Texas, a presidential candidate, is part of the brief.
Democrats, led by Sen. Minority Leader Harry Reid, D-Nev. and House Minority Leader Nancy Pelosi, D-Calif., filed their own brief.
“President Obama’s Immigration Executive Actions fall well within the legal and Constitutional precedents set by every Democratic and Republican president since Eisenhower,” Reid and Pelosi said in a statement. “In fact, in the absence of Congressional action, Presidents Ronald Reagan and George H.W. Bush themselves took bold action to protect the spouses and children of people who received status under the IRCA (immigration law) of 1986.”
In the case of a 4-4 tie in the Supreme Court, the previous court action would stand, meaning the 5th Circuit decision upholding the injunction would prevent the program from being implemented.
Maria Recio: 202-383-6103, @maria_e_recio