FURTHER UPDATE: Thursday, 2:41 p.m.   The movement of the case on a faster schedule apparently resulted from the decision of government lawyers to waive their right to file a reply brief after the states had filed their opposition brief.

UPDATED Wednesday 11:51 p.m.   The Court has now scheduled the immigration case for consideration at the Justices’ private Conference on January 15, according to the Court’s docket.


Twenty-six states challenging the Obama administration’s year-old plan to defer deporting up to five million undocumented immigrants urged the Supreme Court on Tuesday to leave in place a lower court order blocking any enforcement of that policy.  But, if the Court chooses to step in, the states argued, it should broaden the review to rule on their claim that the plan is unconstitutional.

Up to this point, the constitutionality of the policy itself has not been decided by lower courts, and the government did not raise that fundamental question when it filed its appeal in November.  But the states contended that the Court should opt, if it grants review, to also rule on their arguments that the program violates the separation of powers doctrine, by intruding on Congress’s lawmaking power, and also violates the president’s constitutional duty to enforce existing immigration laws that mandate the deportation of immigrants who entered the country illegally — a duty under the “Take Care Clause.”

The states’ brief in the case of United States v. Texas has now been filed in time for the Court to consider granting review during the current Term.  The Justice Department would like the Justices to take their initial look at the case, to decide for or against review, at a private Conference in January.  That way, if review is granted, there will be time to file all of the briefs and hold oral argument, with a final decision likely before the end of June.   Of course, that would mean a decision coming out in the midst of a presidential election campaign in which immigration is a central policy issue.

For President Obama, the deferred deportation policy is one of his most significant policy initiatives of his time in office, ranking in importance to him in domestic policy with the massive overhaul of health insurance policy in the Affordable Care Act.  By contrast with his repeated success against legal challenges to the health care law, his immigration initiative has never gone into effect, because it has been blocked by two lower courts.

As the case reached the Supreme Court, there is one question that could be reviewed that does have its basis in the Constitution: the government’s claim that the states lack the legal right to sue to stop an executive branch policy simply because they disagree with it, and do not stand to suffer any injury as a result of the policy.  But that Article III objection to the states’ lawsuit does not involve, in any way, whether the policy itself violates the Constitution.

A federal district judge in Texas and the U.S. Court of Appeals for the Fifth Circuit ruled that at least one state — Texas — will suffer injury because of increased state administrative costs, and that is sufficient to satisfy Article III.  But, neither of those lower courts, in deciding to impose a preliminary court order against enforcement until the states’ case can go to a full trial, took any action on the two constitutional claims that the states made against the merits of the policy.

In seeking to have those claims added to the case if the Justices accept review, the states relied upon one of the Supreme Court’s most famous decisions striking down a presidential action — the 1952 decision in Youngstown Sheet & Tube v. Sawyer, nullifying President Harry Truman’s nationwide seizure of the steel mills to keep them operating during the Korean War, after they were hit by a major labor strike.   That ruling is considered to be one of the Court’s boldest efforts to reinforce the constitutional doctrine that the three branches of government must stay within their own basic grants of authority.

In replying to the government’s petition, the states sought to defend their right to have filed the court challenge, arguing that the fact that Texas has shown that its costs of operating state government would rise if the policy went into effect was sufficient to give at least one state Article III standing, and that is enough to justify the case under Supreme Court precedents.  The impact of the policy in Texas, the brief said, would be felt in added costs for issuing drivers’ licenses to immigrants who are allowed to stay in the country, along with added costs for heath care, law enforcement, and education.

The states did not attempt to revive, in their new brief, one additional argument in favor of a right to sue — an argument  that the trial judge in Texas had accepted as an alternative basis for Article III standing.  That was the theory that, if the national government “abdicates” in its duty to enforce federal laws, the states are free to sue to right the situation.  The Fifth Circuit did not deal with that separate standing rationale when it upheld the temporary order blocking enforcement until the case can go to trial.

The states’ brief is filled with strong rhetoric about how President Obama’s immigration initiative was said to be based upon a complete lack of authority, because Congress had laid down the laws that govern who can enter and stay in the country as non-citizens.

The president and his aides have defended the policy as no more than an exercise, by the executive branch, of deciding through the exercise of discretion who should be deported.   But the states countered that the authority to decide who may be deported must be done on an individual-by-individual basis, not by a broad declaration that will spare deportation for millions who are in the U.S. illegally — at least four, and perhaps as many as five, million.

If the president’s program is upheld and is allowed to go into effect, it would allow individuals who apply to stay, and can satisfy specific criteria of eligibility, to remain in the country for three years, to obtain work permits and to receive a variety of federal benefits.

The government is expected either to file a quick reply to the state’s new brief, or to forgo that option to assure that the case is ready for the Court’s first look next month.



Posted in U.S. v. Texas, Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, States want wider immigration review, if Court takes case (FURTHER UPDATE), SCOTUSblog (Dec. 29, 2015, 6:37 PM), http://www.scotusblog.com/2015/12/states-want-wider-immigration-review-if-court-takes-case/