The highest court in the land will rule on a case that calls President Obama’s 2014 executive actions on immigration into question. Here is some background and a summary of the issues it raises.
On April 18, the Supreme Court heard arguments in United States v. Texas, a case originally brought by Texas and 25 other states against the federal government about the legality of President Obama’s November 2014 executive order offering temporary deportation relief to as many as 4.9 million of the 11 million undocumented immigrants in the country. Soon after the order was issued, a case was filed in Brownsville, Texas, and Judge Andrew Hanen ruled against the order, thereby blocking its implementation. Two appeals since have upheld that ruling, and in December 2015, the Obama administration petitioned the Supreme Court to hear the case, and they agreed.
President Obama’s executive order was a response to years of legislative gridlock and polarization in Congress on the issue of immigration reform. The order offers temporary stays of deportation via two programs for as many as five million undocumented migrants. First, if implemented, it would establish Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), providing deportation postponement to parents of U.S. citizens and permanent residents and the ability to apply for work visas. Secondly, it would expand an existing program, Deferred Action for Childhood Arrivals (DACA), which applies to non-citizens who came to this country when they were under the age of sixteen; qualified applicants could obtain a 3-year deferment rather than the current term of two years. Regardless of the Supreme Court decision, the existing DACA program is still operating and accepting applications.
DACA, initiated through an executive order in June 2012, was an attempt to make good on some of the promises of the DREAM Act, which failed to pass. Even so, these young people—a constituency of 1.2 million—often call themselves DREAMers, borrowing the aspirational language and intent of that legislation, and many are active in advocating for laws that keep families together and provide opportunities for new immigrants. In July 2013, Father Sean prayed with a group who had entered Mexico to cross back into the U.S. as a means of drawing attention to the need, both logical and dire, for immigration reform.
In United States v. Texas, the argument put forth by Texas and the other states is that the order imposes an undue burden on the states to take on the expense of providing subsidized driver’s licenses and other benefits to qualified immigrants. They deem this a form of financial harm. And though they concede that the Executive can designate how to enforce immigration law on a case-by-case basis, they contend that the president does not have the constitutional authority to designate how the law is applied to broad categories of people. In so doing, the argument goes, the president is making law rather than enforcing it.
The position of the Obama administration is that the states do not have standing to bring the suit; the order is directed at immigrants, not the states, and state governments do not incur any obligations or harm due to this action. More precisely, the states determine how—and how much—they can underwrite federally issued laws or actions, and to grant standing to sue over any federal law that increases state costs sets a worrisome precedent, opening the door to other challenges.
The administration also asserts that it is not creating new law—the order does not grant exemption, amnesty or citizenship, but rather allows for temporary stays and delineates enforcement priorities for determining who is deported and who is not, a constitutionally mandated function of the Executive called “prosecutorial discretion.” In Arizona v. United States, a 2012 Supreme Court case, the court upheld the right of the executive branch to exercise discretion in deciding how to prioritize deportations; this latitude is, in fact, inherent in how immigration officials make deportation decisions every day, and would not be considered “overstepping” when employed by the president.
The Supreme Court is expected to rule in June. Here are the issues affecting how the case is interpreted:
- Executive Actions on Immigration: President Obama is not the first chief executive to put forth actions concerning immigration and offer guidelines on how to interpret and apply immigration law. Every president for the past 50 years has granted some form of temporary deportation relief through executive order.
- Budget Limitations: Congress approves, extends or limits various government programs and activities by controlling the purse strings. Practically speaking, the funds appropriated for deportation only allow for about 400,000 returns and removals each year, far less than the 11 million undocumented people living in the U.S. Not only does the current budget scenario require discretion about who is deported; Congress has implicitly approved the non-deportation of the vast majority of undocumented individuals by not providing the resources to implement such a policy.
- Politics: Though the case is being heard in a legal venue and context, the recent history of immigration reform has been highly controversial and divisive in Congress and the media. Congressional stalling, along partisan lines, was a major reason behind President Obama’s decision to issue the executive order in the first place. Even now, the order does not preclude passing new immigration laws, but Congress continues to be unresponsive.
- Public Sentiment: Over the years, polls have consistently shown that two-thirds or more of the American public favor programs that provide discretionary guidance about how to apply immigration law and that designate a path to legal status for undocumented immigrants.
- Supreme Court Vacancy: With Justice Scalia’s seat remaining vacant, there is a possibility of an evenly split court. If the decision is 4-4, the earlier federal district court ruling stands, and the executive order remains blocked. Another possibility is that the Court may decide to postpone a ruling, and reconsider the case once a full complement of justices is in place.
Whatever the Supreme Court’s decision, it may well be short-lived. Even if they overturn the present injunction and President Obama’s order goes forward, a new president will take office six months later, and can rescind, expand or change the way existing immigration law is applied. This puts those eligible for deportation relief in a distressing bind if the executive order is implemented with mere months left in President Obama’s term. If the next president leaves the order unchanged or chooses to expand on it, coming forward and applying for relief could provide a more stress-free window of time to seek legal status while remaining with family and in stable work situations. On the other hand, if the order is rescinded or eligibility is reigned in, immigrants who come forward would have essentially informed the government of their undocumented status and be subject to deportation. Once again, the long-term solution lies with Congress who has the power and responsibility to create more humane immigration legislation. Until then, millions of immigrant lives continue to hang in the balance.