In what could be a race against the judicial clock, the Obama administration said Tuesday that it will ask the Supreme Court to let it begin enforcing its program to spare more than four million undocumented immigrants from being deported.  If the legal filings are not sent in quickly, and the case is not put on an expedited schedule, the Court may not have time to decide it during the current Term.

If the case were to be put off until the next Term, it almost certainly would not be decided until after the 2016 presidential election, and the fate of the program may well be affected by who next occupies the White House.

On Monday night, a divided panel of the U.S. Court of Appeals for the Fifth Circuit blocked enforcement of the law — as a federal trial judge had done last February — but the appeals court went even further than that judge had, finding that President Barack Obama would ultimately be found to have no legal authority to adopt the deferred deportation scheme announced one year ago.

Under the program, some 4.3 million individuals who are in the country illegally and are the parents of a son or daughter who is a U.S. citizen or lawful permanent resident could apply to stay in the country, get a work permit, and qualify for a variety of public benefits.  They also could apply to state governments for driver’s licenses.

Besides blocking that program, the Fifth Circuit’s order also postpones the planned expansion of a 2012 program that has allowed more than 600,000 young people, brought to this country by their undocumented immigrant parents, to stay in the country and gain other benefits.  The expansion would have added millions more to that separate program.

After the ruling, a Justice Department spokesman, Patrick Rodenbush, issued this statement: “The Department of Justice remains committed to taking steps that will resolve the immigration litigation as quickly as possible in order to allow [the Department of Homeland Security] to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children.  The Department disagrees with the Fifth Circuit’s adverse ruling and intends to seek further review from the Supreme Court of the United States.”

Under the Supreme Court’s rules, the administration would have ninety days from Monday to ask it to review the case.  However, waiting that long would push well beyond the time in late January when the Court would have finished filling its docket for oral arguments and decisions this Term.

Thus, the government is expected to file appeal papers promptly and would be likely to ask that the case be expedited.  It is conceivable that the Court could schedule oral argument beyond late ,April when it usually finishes hearing oral arguments in cases to be decided in that Term.

The deferred deportation program was challenged in federal court by twenty-six states in a federal district court in Brownsville, Texas, along the state border with Mexico.  Judge Andrew Hanen in mid-February imposed a temporary order against enforcement, which the Fifth Circuit upheld on Monday evening.  It was not a final order striking down the program, but put it on hold until there is a full trial of the case in Judge Hanen’s court.

The Fifth Circuit ruling was written by Judge Jerry Smith, and it was joined by Judge Jennifer Walker Elrod.  Judge Carolyn Dineen King dissented, accusing the majority of making a mistake.

Although the states, in their challenge, had added a constitutional protest to their other claims under federal law, arguing that the president had failed in his constitutional duty to execute existing immigration law, neither Hanen nor the Fifth Circuit decided that issue.

The trial judge kept his ruling narrow, finding only that the Obama administration had failed to put up its program for public notice and comment before adopting it, a procedural violation under the Administration Procedure Act, if that claim is ultimately proved at the trial.

The Fifth Circuit agreed with Hanen on that point, but went further, and ruled that the states were also likely to win on their claim — also under the APA — that the government simply lacked authority to adopt the program because Congress had passed laws that fully control when undocumented immigrants can be given a right to stay in the country or a right to receive public benefits.

The Fifth Circuit said that was an alternative basis to the APA procedural claim that justified putting the program on a further hold, pending the actual trial.

The administration is free to ask the Supreme Court to review the case, even though the two lower courts issued their rulings prior to an actual trial on the states’ challenge.

In taking the case to the Supreme Court, the administration is expected to make the same points that it had made in lower courts, and on which it lost in those courts:

** That the states had no legal right to sue under the Constitution’s Article III because they cannot show that they would be harmed by the deferred deportation program.  (The lower courts ruled that at least the state of Texas would be harmed because it would cost that state millions of dollars to administer the expansion in issuance of driver’s licenses to many of the roughly 500,000 immigrants in that state who could remain in the U.S. under the program. The Fifth Circuit did not accept Hanen’s alternative basis for finding that the states had “standing to sue” — that they were harmed by the president’s “abdication” of his duty to enforce existing immigration laws.)

** That Congress has given the executive branch wide discretion to decide who should be deported, and the choices made about that are an act of “prosecutorial discretion.” (The lower courts rejected that argument, concluding that Congress had not given such wide power to the executive branch, and that, in any event, the new program actually created legal rights and benefits that only Congress could establish.)

** That the exercise of discretion to adopt such a program is not subject to review in the courts. (The lower courts rejected that argument, concluding that Congress had given the states a right to make a challenge under the APA, if they were involved in activities within the “zone of interest” of the new program.)

Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, U.S. to appeal immigration case to the Court, SCOTUSblog (Nov. 10, 2015, 4:28 PM), https://www.scotusblog.com/2015/11/u-s-to-appeal-immigration-case-to-the-court/