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Court will review Obama administration’s immigration policy: In Plain English

In the summer of 2014, efforts to pass new laws to overhaul the country’s immigration system seemed to be on a slow road to nowhere.  In remarks at the White House on June 30 , President Barack Obama announced that then-House Speaker John Boehner had told him that Republicans would “block a vote on immigration reform at least for the remainder of this year.”  Arguing that “Americans can’t wait forever” for Republicans to act on immigration, Obama indicated that he planned to go it alone.

And he did.  In November of that year, Obama announced a new policy that would allow undocumented immigrants who can meet two criteria – they have children who are U.S. citizens or lawful permanent residents (also known as “Green Card holders”) and they have been in the United States at least since January 2010 – to apply for a program that would allow them to stay in the country for three years and work here legally.

The policy, which could allow as many as four million undocumented immigrants to remain in the country, never went into effect.  Instead, Texas and twenty-five other states went to federal court to try to block it.  So far, they have been successful:  a federal trial judge issued an order to keep the policy from going into effect, and a federal appeals court upheld that ruling.

The Obama administration asked the Supreme Court to weigh in, and today the Justices agreed to do so. This means that the Court will almost certainly hear oral arguments in the case in late April, with a decision expected in late June – just as the 2016 presidential campaign, in which immigration has already played a major role, really starts to heat up.

The first issue that the Justices agreed to decide today is a threshold question: whether Texas and the other states have a right to file the lawsuit at all – a legal doctrine known as “standing.” The idea behind standing is that federal courts should only decide actual disputes, between parties who have a concrete interest in the conflict. You can’t bring a lawsuit, for example, simply because you don’t like one of the government’s policies; you generally have to show that you have been directly affected or injured by that policy.

The lower court in this case ruled that, at the very least, Texas has a right to challenge the administration’s immigration policy. (And as long as one of the twenty-six states has that right, the lawsuit can go forward.) If the policy were to go into effect, that court reasoned, the state would face significant additional costs, ranging from subsidies for temporary driver’s licenses to expenditures for health care, law enforcement, and education.

In its petition for certiorari, the legal brief asking the Court to review the case, the Obama administration argued that – just like individuals – states usually don’t have a right to sue to challenge decisions by the executive branch about how it will enforce federal laws. That doesn’t change, the administration continued, when the policy at the heart of the conflict may have “collateral consequences” for the immigrants who may benefit from the policy. And, the administration added, it was Texas’s choice to allow certain immigrants to apply for temporary driver’s licenses and subsidize the costs; nothing in the new immigration policy would prevent Texas from changing or getting rid of the driver’s license program at any time.

The next question that the Justices agreed today to decide goes to the merits of the state’s challenge: assuming the states do have a right to bring the case, does the Obama administration have the authority to issue the new immigration policy? The administration contended that it does: Congress makes immigration law, but it has given the executive branch discretion to make decisions about immigration and deportation, including who gets to stay in the country.  Indeed, the administration emphasized, although immigration law makes “a huge population” of undocumented immigrants potentially subject to being deported, Congress “has appropriated the funds to remove only a small fraction of that population” – which, the administration suggested, is a tacit acknowledgement by Congress of the executive branch’s discretion to prioritize which immigrants should be deported. Moreover, the administration added, even though “Congress has long been aware” that the executive branch has regularly declined to deport specific groups of immigrants, it has never done anything that would prevent the executive branch from allowing this group of parents to stay in the country.

Opposing Supreme Court review of the case, Texas and the other states countered that Congress “has created a detailed, complex statutory scheme for determining when” someone can enter and stay and work in the country.  It’s true, they said, that the executive branch has some discretion on these issues, but Congress intended for that discretion to be exercised on a case-by-case basis, rather than by enacting a sweeping policy that will allow four million people to stay in the country and work here.  And, they argued, Congress has specifically given the executive branch authority to decline to deport particular groups of people in “only four narrow circumstances” – for example, the family members of lawful permanent residents who were killed on September 11.

A third question before the Court is whether a federal law that governs how federal agencies issue regulations required the Department of Homeland Security (the section of the government that actually issued the policy) to notify the public about the proposed policy and provide an opportunity for members of the public to weigh in on it.

In granting review today, the Justices also instructed the states and the Obama administration to address a fourth question: whether the immigration policy violates the Constitution’s “Take Care Clause,” which requires the president to “take care that the laws be faithfully executed.”   The states had raised this question briefly in the Supreme Court, while emphasizing it heavily below. In many cases, the fact that the lower court did not decide a legal question will often prompt the Justices to decline to do so as well – but that did not happen here. This could mean that the Justices just want to make sure that all of the bases are covered in the case, or it could mean that there are at least four Justices who believe that the argument has some merit; it is impossible to know right now.

In its plea for the Court to grant review, the Obama administration concluded by urging the Justices to focus on the big picture. If the lower court’s ruling is “left undisturbed,” it lamented, it will have a “far-reaching and irreparable humanitarian impact” on approximately four million people and their children. With today’s announcement that the Court had voted to grant review, the fate of those four million people may now lie largely in the Justices’ hands.

Recommended Citation: Amy Howe, Court will review Obama administration’s immigration policy: In Plain English, SCOTUSblog (Jan. 19, 2016, 4:39 PM),