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U.S. appeals on immigration policy

One year after President Barack Obama took historic steps to overhaul immigration policy, his lawyers on Friday appealed to the Supreme Court to uphold his plan and let it go into effect.  It is currently stalled by lower court rulings finding that the president probably overstepped his powers in bypassing Congress to put off deportation for nearly five million undocumented immigrants.

The filing in United States v. Texas (docket 15-674) arrived just as Washington’s attention is focused on what the government should do about the immigration of refugees fleeing from war and terrorism in the Middle East.  The only link between that controversy and the deferred-deportation policy is that the Court in deciding that case could clarify how power over who may enter the country is divided between Congress and the executive branch.

The petition opened with a challenge to the right of state governments to go to court to challenge the policy choices of the president and his aides over who and when to send out of the country when they have entered illegally.  It added two other questions: was the new policy beyond the government’s authority, and did it have a duty to give the public a chance to comment on the policy before it was adopted?

The question of states’ “standing” to sue is a constitutional issue — under Article III — but the petition raised no separate question about the constitutionality of the policy.  The U.S. Court of Appeals for the Fifth Circuit had ruled that the twenty-six states that sued would be able ultimately to show that the president lacked the authority to adopt the policy — a violation of the Administrative Procedure Act.   The states had also raised a constitutional challenge to the policy, but the lower courts opted not to rule on it.

Because it is getting late in the Supreme Court’s current Term to begin a new case, the filing asked the Court to grant “immediate review,” because of the “broad importance” of the policy, the harm that delay could cause to “the many families affected,” and the “great and immediate significance” of implementing the details of the new approach.

Although the government did not ask the Court explicitly to put the case on an expedited schedule, it is likely that the case could be ready for the Court’s initial action — that is, the decision to grant or deny review — within a matter of weeks.  Ordinarily, a case must be accepted for review by the end of January in order to be briefed, argued, and decided in that Term.

The suing states normally would have thirty days to reply, but they also have the option of asking for more time to file.  The government may not be able to head that off, but it also would retain an option to formally ask the Court to expedite its review in order to have it decided this Term, which is likely to end in late June.

The petition made an energetic challenge to the states’ right to sue, arguing that the lower court rulings allowing them into court to pursue their own view of proper immigration policy was “unprecedented and momentous.”

But the filing by U.S. Solicitor General Donald B. Verrilli, Jr., also mounted a fervent defense of the policy itself, arguing that it was well within the historic discretion that Congress and the Constitution have given to the executive branch to manage immigration and deportation.

While the lower courts’ rulings were focused mainly on the policy that the president announced on November 20 last year, involving parents of children who are citizens or permanent lawful residents, but as parents have no right on their own to stay in the U.S., the government argued that those rulings “will place a cloud over the lives of hundreds of thousands of people” who gained a right to stay under a similar program the government adopted for young people in 2012.

The 2014 initiative centrally involved parents, but also included some changes to, including expansions of, the 2012 policy for younger immigrants.

If the Court were to agree with the government’s argument that the states lacked the right to file their lawsuit, that would be the end of the case.  The Constitution only allows federal courts the authority to decide actual “cases or controversies,” and the lack of proof that a suing party had any vital interest at stake denies it the right even to file a lawsuit in those courts.

If the Court does confirm a right for the states to have sued, it presumably would then move on to decide whether the deferred-deportation policy was likely ultimately to be found illegal.

Technically, the case has reached the Supreme Court while still in a pre-trial stage. The lower courts, besides finding that the states do satisfy “standing” requirements, issued only preliminary orders blocking enforcement.  But they did so on the premise that the states were likely to win their challenge, once it went to a full trial.



Recommended Citation: Lyle Denniston, U.S. appeals on immigration policy, SCOTUSblog (Nov. 20, 2015, 10:13 AM),