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Supreme Court to Take Up Immigration Executive Action Case (United States v. Texas, et. al.)

By Theresa Cardinal Brown

Wednesday, January 20, 2016

On January 19, 2016, after denying the request of the states to extend the time for filing, the Supreme Court agreed to hear the case filed by the state of Texas and 26 other states against President Obama’s executive actions on immigration.For a primer on the court case and its background, see our previous post.

The three underlying questions the court will consider are:

  1. Are the states legally able to charge that they have suffered harm due to the president’s actions (i.e., do the states have “standing”)?
  2. Are the president’s actions allowed under the law, i.e. the Immigration and Nationality Act? If so, should he have used a formal rulemaking process to undertake them, accepting public comments, instead of by less formal memoranda?
  3. Do the actions show that the president has “tak[en] care that the law be faithfully executed” as required under Article II of the Constitution?

The first two questions were raised by the case as it came up through the Fifth Circuit Court of Appeals. However, the Supreme Court added the last question, which wasn’t part of the underlying court’s rulings. Why did it add the additional question? Most likely because there have been numerous questions raised about whether the president has failed to enforce immigration law, supposedly evidenced by the administration’s prioritization of removals and a decrease in interior removals. Should the Supreme Court rule on this third and most significant question, it could have ramifications not just for the deferred action programs at the center of this case, but other actions relating to enforcement of immigration law undertaken by future presidents.

The Supreme Court will hear arguments and issue a decision during the court’s current term, which ends in June. Many immigrant advocates, and the Obama administration, were concerned that if the court did not decide to take the case in January it would not be heard until its next term, which would start in October—a mere month before the presidential elections.

As it stands, the decision will be rendered some months before the election, but potentially before the parties decide their presidential nominees. Given the role that immigration has played on the campaign trail, the decision will certainly create a response from the candidates. The Democratic candidates all support the executive actions, and most have promised to uphold them or even expand them, if elected. On the Republican side, most candidates oppose the executive actions, and some have promised to overturn them if elected.

In addition, in early 2015, Congress came close to shutting down the government over Republican attempts to attach language preventing implementation of the executive orders to the Department of Homeland Security spending bill. Since that attempt was defeated in the Senate, Congress has generally been content to let the court case play out in lieu of additional legislative action. However, should the Supreme Court side with the administration and allow the new deferred action programs to begin, Congress will almost certainly propose new legislation in an attempt to stop it.

Regardless of the outcome of the Supreme Court case, final resolution of the issue of the unauthorized immigrant population, along with other aspects of the immigration system, will require that Congress and the president work together on a legislative solution. If this does not occur under President Obama, the timing of the court case should put the issue squarely on the table for the new Congress and president in 2017.

1 While the court case is specifically about expansion of the Deferred Action for Childhood Arrivals (DACA) program, and the new Deferred Action for Parental Accountability (DAPA, for parents of U.S. citizens and permanent resident children), many other portions of the November 2014 executive actions are not implicated in the court case and many have been implemented.