The fate of millions of undocumented immigrants may be decided by the Supreme Court.
Exactly one year after President Barack Obama announced sweeping executive actions aimed to protect millions from deportation, the administration appealed to the high court on Friday, seeking a declaration from the justices that the program should be allowed to proceed.
The White House needed to move quickly if it wanted the court to rule in the current term, which ends in late June. Even now, the justices retain wide discretion to accept the case, hold it over until the term that begins next October, or reject it altogether.
The court's timing has clear implications for the 2016 presidential election. If the court takes up the case and rules against the Obama administration, it will be a blow to Democratic candidates, who have said they would go even further than the president on deportation relief. If the court allows the executive actions to move forward, it will hurt Republicans who vowed to rescind them, since doing so would involve stripping people of benefits they had already received.
Obama announced on Nov. 20, 2014 that he would implement a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, which would allow certain undocumented immigrant parents to remain in the country and obtain temporary work permits.
He also said the administration would expand the existing Deferred Action for Childhood Arrivals program, or DACA, which does the same for some undocumented young people who came to the U.S. as children.
Texas led a group of 26 states to sue the Obama administration over the executive actions on DAPA and DACA, claiming they were unconstitutional and would cause the states harm because more people would apply for driver's licenses, among other arguments.
A judge blocked the programs from moving forward, leaving millions of undocumented immigrants who expected relief in limbo. An appeals court upheld that injunction earlier this month.
The Obama administration has maintained that the executive actions were constitutional and said it is confident the courts will eventually rule in its favor.
More than 4 million undocumented immigrants could be eligible for DAPA and the expansion of DACA, according to the administration and outside group estimates. The three-year permits would allow them to work legally and to obtain driver's licenses.
The administration opens its appeal to the justices with a statement from a century-old case -- "The authority to control immigration ... is vested solely in the Federal Government" -- and then proceeds to lay out the various reasons why the court should agree to add the dispute to its docket.
Among them, the government argues that Congress has already vested the Department of Homeland Security with broad powers to determine “national immigration enforcement policies and priorities” and to establish regulations and policies to that effect.
“A principal feature of the removal system is the broad discretion exercised by immigration officials,” wrote Solicitor General Donald Verrilli in the government’s legal brief to the court, quoting from a 2012 case that reaffirmed the executive’s prerogatives over immigration issues. “When they encounter a removable alien, immigration officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
Pointing to “resource constraints” and the government’s historic role in conferring “deferred action” to certain foreign-born persons, Verrilli contended that DHS can only do so much with the estimated 11 million undocumented immigrants that reside in the United States, and noted how Congress has directed it to allocate the “necessary expenses for enforcement of immigration and customs laws, detention and removals, and investigations.”
Resting on that premise, Verrilli -- who will likely argue the case before the Supreme Court if it agrees to hear it -- then asserted that the U.S. Court of Appeals for the 5th Circuit, which ruled against DAPA and the expanded DACA, made a mistake when it “upheld an unprecedented nationwide injunction against implementing a federal immigration enforcement policy,” and that leaving it in place will allow states to thwart authority that otherwise belongs to the federal government.
The 5th Circuit’s decision “will force millions of people — who are not removal priorities under criteria the court conceded are valid, and who are parents of U.S. citizens and permanent residents — to continue to work off the books, without the option of lawful employment to provide for their families,” Verrilli said. “And it will place a cloud over the lives of hundreds of thousands of people who came to the United States as children, have lived here for years, and been accorded deferred action under the 2012 DACA policy, which respondents have never challenged.”
If the Supreme Court decides to add the case to its docket now instead of later, a hearing would take place sometime in the spring, with a decision expected by the end of June.
A spokeswoman for Texas Attorney General Ken Paxton (R) declined on Friday to say what the office's next steps would be, but said it plans to continue with the case.
"The president said himself more than 20 times that he didn't have the authority to unilaterally rewrite immigration law," spokeswoman Cynthia Meyer said in an email. "Three times federal courts have ruled in our favor, and we stand ready to continue defending the rule of law as we lead a 26-state coalition against the president's unconstitutional use of executive power."
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