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Immigration policy: Review and decision this Term

The Obama administration’s sweeping change of deportation policy for undocumented immigrants will get a thorough review by the Supreme Court, including the question of whether it violates the Constitution, the Court announced Tuesday.  The case of United States v. Texas will be set for argument in April, making it almost certain that there will be a final ruling by the end of June — in the midst of a presidential election campaign in which immigration is a major issue.

The Court also spared the federal government from another challenge to the new health care law, denying review of a claim that the individual insurance mandate violates the Constitution’s Origination Clause, requiring federal tax legislation to start in the House of Representatives (Sissel v. Department of Health & Human Services).  In another significant action, the Justices refused to hear an Arkansas abortion case, involving a state law that bars any abortion after the twelfth week of pregnancy (Beck v. Edwards).

The immigration case involves a policy that could postpone, for three years and perhaps longer, the deportation of more than four million individuals who entered the country illegally.  The policy mainly involves parents of children who are U.S. citizens or have permanent resident alien status.  Once they are allowed to stay, they can get permits to work and qualify for several public benefits.  Announced fourteen months ago, the parents policy has never gone into effect because it is blocked by lower court orders in a case filed by twenty-six states.

A rather unusual aspect of the case was that, although the lower courts had not decided a constitutional question the states had raised, the Justices added that question on their own.  It is whether the policy violates the constitutional clause that requires the president to “take care” that the laws passed by Congress are faithfully executed.

It is rare for the Court to take up an issue that was left undecided in lower courts.  The question no doubt was added to assure that all aspects of the states’ challenge are reviewed together.

In addition to that issue, the case involves whether the states had a legal right to sue, or are barred from doing so under Article III; whether the policy is “arbitrary” and beyond the president’s powers under federal immigration laws, and whether it is illegal because the government did not seek public reaction to it before adopting it as policy.

The government got what it wanted with the Court’s agreement to set it for argument during the current Term, but did not get what it wanted on the scope of the Court’s review.  Its appeal had raised the “standing” and statutory issues.  The states, in replying to the appeal, urged the Court to add the “Take Care Clause” issue.  The states believe that the policy contradicts existing laws on deportation, and amounted to the president acting as if he had legislative power.  The government opposed expanding the case to include that issue — which, it argued, added nothing to the states’ statutory arguments.

Before the Court gets to the other questions in the case, it will have to make up its mind on the Article III issue: did the states have a right to sue the president over the way he chose to enforce immigration laws?  To get over that barrier, the states must convince the Court that at least one of them will suffer a legal injury if the policy goes into effect.  Lower courts ruled that Texas would be injured because of the cost of providing driver’s licenses for those individuals allowed to stay in the country.

If the Court were to find that the states were barred from suing, that would be the end of the case.  If the states prevail on that question, the legal fate of the policy would then be up to the Court.  Although the case has not yet gone to a trial, it appeared that the Court was prepared to settle the validity of the program without waiting for further activity in lower courts, if it is satisfied that the states had a right to sue.

Although the parents policy is mainly at issue in the case, the administration also had expanded, at the same time, a 2012 policy that allows children of undocumented immigrants to remain in the country.  That expansion of the earlier policy also has been blocked by lower courts.

The date in April for the Court’s hearing on this case has not yet been set.  At this point, the Court is balancing out what to argue in the months of March and April.  Not all of the twelve cases in which the Court granted review last week or Tuesday will necessarily be heard and decided this Term.

Besides the immigration case, the Court on Tuesday accepted review of three other cases: a significant new case on insider trading in securities (Salman v. United States, grant limited to Question 1 in the case); a plea for further clarification of the enhanced sentences available under the federal Armed Career Criminal Act (Mathis v. United States); and the power of a judge, after dismissing jurors in a case, to recall the jury for further deliberation (Dietz v. Bouldin).

The Court also asked the U.S. Solicitor General for the federal government’s views on whether an individual seeking benefits under the federal Handicapped Children’s Act must first attempt to obtain any remedies available from state government (Fry v. Napoleon Community Schools).  There is no deadline for a government reply.

The Justices’ decision to pass up the latest constitutional challenge to a provision of the Affordable Care Act — the Origination Clause — marked the first time that a major case against the act has been turned aside.  The Court has previously issued three decisions on the ACA — two rejecting challenges, and one upholding a challenge — and it will hear a fourth case, on the contraceptive mandate in the law, later this Term.

While the law’s mandate that virtually all Americans must have health insurance or pay a financial penalty to the government had been upheld in one of those prior rulings, the new Sissel case sought to test that again. This time, the theory was that the obligation to buy insurance or pay a financial penalty was a tax measure — which the Constitution requires to originate in the House of Representatives.  The challengers argued that the Senate actually began the ACA’s legislative journey by simply substituting its language for that of a much different House-passed measure.  Two lower federal courts rejected that complaint, and the Justices on Tuesday chose to leave that rejection unreviewed.

In refusing to review the appeal in an abortion case by state officials in Arkansas, the Court kept itself out of the controversy over the continuing efforts in some states to curb access to abortions by banning the procedure at earlier points in pregnancy.  The Arkansas law keyed the ban to the point in pregnancy when a fetal heartbeat could be detected, but at least after twelve weeks.  The law had a number of exceptions, but still amounted to a significant reduction in women’s access to abortions.

One of the most significant aspects of the Arkansas case was that three judges on the U.S. Court of Appeals for the Eighth Circuit had urged the Supreme Court to reopen the question of when abortions could be banned outright.  Since Roe v. Wade in 1973, the Court has ruled repeatedly that a state may not totally ban abortions until after a fetus has reached “viability” — the point at which it could survive if delivered alive.  Viability usually is reached somewhere around the twenty-third or twenty-fourth week of pregnancy.  The lower court judges said that recent developments in fetal medicine have suggested that the “viability” dividing line on abortion bans is no longer valid as a medical phenomenon.

While a number of legislatures have passed measures similar to, or more restrictive than, the Arkansas law, some legislatures have adopted another approach to reducing abortions — laws intended to closely regulate how abortion clinics operate.  On March 2, the Court will hear oral arguments in such a case, involving restrictions adopted in Texas.

Among other actions the Court took on Tuesday, it refused to consider holding in contempt state officials and a private group in Hawaii who have been involved, directly or indirectly, in the plan to hold a constitutional convention to set up a new, sovereign nation inside the state of Hawaii, to be made up only of “native Hawaiians.”  Opponents of that movement argued that the promoters of the campaign for tribal sovereignty disobeyed a Supreme Court order dealing with the terms of an election to select delegates to a constitutional convention.

The Court gave no reason for refusing to take contempt action in the case.   The dispute now returns to the U.S. Court of Appeals for the Ninth Circuit, where the challengers to the new nation plan will continue to attempt to stop it.


Recommended Citation: Lyle Denniston, Immigration policy: Review and decision this Term, SCOTUSblog (Jan. 19, 2016, 9:50 AM),