In the aftermath of the Supreme Court hearing on April 18, 2016, concerning President Obama’s executive actions on immigration, the guessing game has begun. Many pundits predict that because we are in an election year and the High Court is equally divided 4-4 between conservatives and liberals (due to the recent death of Justice Antonin Scalia), any decision will be narrow in scope. If the Court were to limit the purview of its ruling, it would pave the way for broader action after the new president has filled the current vacancy.
Here’s a quick review of how we got to where we are today.
Partly to resolve congressional gridlock on immigration reform, President Obama issued executive orders in November, 2014, pertaining to the Deferred Action for Parents of Americans (DAPA) and Deferred Action for Childhood Arrivals (DACA) programs. His actions postponed for at least three years the compelled deportation of nearly 5 million undocumented immigrants. Following through, the Secretary of Homeland Security issued guidance to law enforcement officials to defer the deportation of parents of US citizens and young people brought to the US as children.
Texas and 25 other states joined together to challenge the President’s actions, claiming that Texas will be financially harmed by having to issue driver’s licenses to this new category of deferred deportation immigrants. In 2015, rulings by a federal district court judge, then a three-judge panel of the 5th Circuit Court of Appeals, affirmed Texas’ claims, and the DHS guidance is currently on hold. Both courts agreed that the Obama administration failed to follow proper administrative procedures before announcing its programs. The federal government appealed the 5th Circuit Court’s decision to the Supreme Court.
In accepting United States v. Texas, the justices asked the parties to address four questions:
1. Do the states have “standing” to bring forth this suit?
2. Was the DHS guidance legally issued?
3. Is the DHS guidance legal?
4. Does the guidance violate the Take Care Clause of the Constitution, Article II, Section 3, that says the president “shall take care that the laws be faithfully executed”?
Oral arguments last month focused much attention on the question of whether the states have the required “standing” to bring suit. Texas argued that it would be overly burdened because of Obama’s actions. Chief Justice John Roberts summed up the matter as follows: “Texas says, ‘Our injury is we have to give driver’s licenses here, and that costs us money.’” The issue of whether the Texas policy is voluntary and could be amended to deny services to a new category of residents was closely examined. The government argued that the economic harm to Texas was hypothetical, not real, and that the state lacked the standing for the suit to proceed.
Even though the question of whether Obama violated the Take Care clause was a question the Court had asked both parties to consider, the issue was not raised during the hearing. As a result, the issue of “standing” appears to be the main point under consideration at this point.
Texas Governor Greg Abbott, the main force behind the lawsuit, said that “Immigration just happens to be the topic this lawsuit was framed under,” adding, “the lawsuit is about presidential power, and is not about immigration.” In a briefing for reporters after the Supreme Court hearing, he noted that the current case was the 31st legal challenge he has brought against agencies and programs of the Obama administration. Conservative states such as Texas often perceive the federal government to be meddling where it doesn’t belong.
Our analysis suggests that, with such a politically charged topic, a 4-4 ruling from the Supreme Court would leave in place the 5th Circuit Court’s ruling that blocks implementation of the President’s plan. If this were to occur, the limbo status of undocumented immigrants would continue until a future challenge could be heard before the Court. However, based on the content of the arguments, we are hopeful that the Supreme Court will rule to implement these expanded definitions of Deferred Action.
By Immigration Attorney Vivian Salib Crowell