Washington (CNN)The Supreme Court on Monday will take on a case that could torpedo the
Obama administration's controversial executive actions on immigration
that have become a flashpoint in the 2016 race.
President Barack Obama announced the moves to great fanfare in late 2014,
as a response to congressional inaction on immigration reform, but a federal
court blocked them after Texas and 25 other states sued.
Busloads of immigrants' rights activists -- some of them undocumented
-- are expected on the court's plaza to support the policies that
could affect around 4 million people. The moves are meant to shield them
from deportation and allow them work permits.
Critics of Obama's moves say they are part of a pattern of the White
House looking to go around the Republican Congress.
"Basically the President has stepped in and taken over what normally
would be associated with Congress," Texas Attorney General Ken Paxton
said in an interview. "Congress makes the laws."
The GOP Congress will be involved at oral arguments as well. The House
of Representatives, in an unusual move, intervened in the case against
the administration, and will have 15 minutes before the eight justices
to argue its case Monday.
That only eight justices are hearing the case -- due to the death in February
of Justice Antonin Scalia -- could impact the final result. A split court
between the four Democratic-appointed justices and four GOP-appointed
justices would mean the programs remain blocked and the case is sent back
to the district court in Texas that blocked them in the first place.
How the Supreme Court has changed since Justice Antonin Scalia died
For the administration, a key argument before the court is to say that
the states do not have the legal right to bring the case in the first
place. If it can convince a majority of justices on that issue, the court
may not even get to the merits of the immigration debate.
Should it win on that count, the injunction would be lifted, and the programs
would be able to go into effect during the final months of the Obama presidency.
However, because the actions can be changed or reversed by the next President,
immigrants would have to decide whether to come forward for the remaining
months of the Obama administration or risk doing so with the possibility
of Donald Trump or Ted Cruz in the White House.
"There's no question that the ultimate fate of the deferred action
policy hangs in the balance of the upcoming election," said Stephen
I. Vladeck, a professor of law at American University and CNN Legal Analyst.
"Like any other executive order, it can be modified, rescinded, or
expanded by the next President, and codified or overruled by the next
Congress," he added. "But the fact that the Supreme Court expedited
its consideration of the Obama administration's appeal so that it
could resolve the dispute by June suggests that, even short-handed, the
justices want to have their own say first."
The White House announced the programs in November 2014, issuing a five-page
guidance memo enabling qualifying undocumented workers to receive temporary
relief from the threat of deportation and to apply for programs that could
qualify them for work authorization and associated benefits.
The Deferred Action for Parents of Americans and Lawful Permanent Residents
(DAPA) targets the nearly 4.3 million undocumented parents of citizens
and lawful residents, and the second rule expands Deferred Action for
Childhood Arrivals (DACA), initiative aimed at non citizens who came to
the country as children.
"We'll bring more undocumented immigrants out of the shadows so
they can play by the rules, pay their full share of taxes, pass a criminal
background check and get right with the law," Obama told an audience
in Nevada after the programs were announced.
The programs remain frozen nationwide. They were first blocked by a federal
judge in Texas and a divided federal appeals court later upheld the preliminary
Obama's lawyers argue in court papers that the lower court rulings
threatened great harm, "not only to the proper role of federal courts
and to federal immigration law, but also to millions of parents of U.S.
citizens and permanent residents, aliens who are the lowest priorities
for removal yet now work off the books to support their families."
As a threshold issue, Solicitor General Donald Verrilli says that the states
don't have the legal right to be in court, because the Constitution
"assigns the formation of immigration policy exclusively to the National
Government precisely because immigration is an inherently national matter."
He stressed that the guidance from the government does not provide any
kind of lawful status under immigration law as the aliens remain removable
at any time.
"Immigrant communities fought for these programs," said Marielena
Hincapié, the executive director of the National Immigration Law
Center. She says that her groups have been informing people about the
risks of the rules being changed by the next president and she believes
many will come forward should the Obama administration win.
Texas Solicitor General Scott Keller argues that the states have standing
to bring the challenge in part because DAPA would create a new class of
recipients for state subsidized driver's licenses in Texas. He says
that Texas would stand to lose millions of dollars if even a small fraction
of DAPA eligible aliens applied.
"DAPA is an extraordinary assertion of executive power," Keller
wrote in court papers. "The Executive has unilaterally crafted an
enormous program -- one of the largest changes ever to our Nation's
approach to immigration," he said. "In doing so, the Executive
dispensed with immigration statutes by declaring unlawful conduct to be
He points to the guidance and says that the eligible undocumented immigrations
would be permitted to be "lawfully present in the United States,"
which would make them eligible for work authorization and some types of
Social Security and Medicare benefits.
Texas is supported by the GOP-led House of Representatives, who say that
the programs went forward after the President failed in his attempts to
persuade Congress to revise immigration laws.
Erin E. Murphy, a lawyer for the House, called the administration's
position, "the most aggressive of executive power claims."
But Vladeck says standing is where justices may look to find a path forward.
"Because the justices will want to avoid a 4-4 tie if at all possible,
there's a more than decent chance that they'll gravitate toward
the standing issue, and hold that any injury suffered by Texas is its
own fault, since nothing requires the state to subsidize driver's
licenses -- and to thereby incur the costs on which it is relying.
"And such a holding might unite the liberal and conservative justices,
the former of whom would want to see the program survive, and the latter
of whom typically favor narrower standing rules," he added.
Andrew Pincus, a lawyer who supports the administration's position,
says that allowing Texas to bring the case would have broad implications.
"If a state can sue every time the federal government does something
to increase the state's costs, states could sue to challenge almost
anything the federal government does," he said.
Pincus points out that Texas is not objecting to the administration's
use of prosecutorial discretion, it just doesn't want the undocumented
workers to be able to work legally.
"You are saying to these people, you can stay here, but we are keeping
you in a bubble," he said.
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