Texas Begs The Supreme Court Not To Touch Obama's Immigration Appeal

After winning in lower courts, the state wants to stay a winner.
Families rally in front of the Supreme Court on Dec. 11, 2015, calling for immigration reform and deportation relief.
Families rally in front of the Supreme Court on Dec. 11, 2015, calling for immigration reform and deportation relief.
Chip Somodevilla/Getty Images

WASHINGTON -- While as many as 5.2 million undocumented immigrants in the U.S. continue to await a final decision on deportation relief, Texas on Tuesday opposed an appeal from the Obama administration that could put the president's executive actions on immigration before the Supreme Court.

Complying with a deadline the court set earlier this month, Texas aimed to keep its prior victories in place and urged the justices not to take the case, arguing that the initial court order preventing the programs from moving forward -- plus an appeals decision affirming it -- “was necessary to uphold the separation of powers and ensure the proper functioning of the administrative state.”

“This particular assertion of unilateral Executive power occurred in the immigration context. But if [the federal government’s] arguments are accepted, there is nothing stopping this Executive or future Executives from invoking resource constraints to declare conduct lawful in other areas -- such as environmental, tax, criminal, campaign finance, and civil-rights laws,” Texas stated in its brief to the court.

Obama announced the new deportation relief program last November as part of a series of sweeping executive actions on immigration. The largest was a new policy called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, to allow certain undocumented parents to remain in the country and work on a temporary basis. The president also announced an expansion of the existing Deferred Action for Childhood Arrivals program, or DACA, which does the same for certain undocumented immigrants who came to the U.S. before they turned 16.

Texas sued to challenge the constitutionality of the program last December, and shortly after, 25 states joined the lawsuit, which has kept the policies in limbo ever since.

Calling Obama’s policies a “sweeping and unprecedented assertion of Executive authority,” Texas repeated many of the arguments it has presented in lower courts -- among them, that these initiatives cause Texas substantial “harm,” that the program constitutes agency action and is thus perfectly reviewable by federal courts, and that Obama lacks “substantive authority” to enact it on his own.

“In reality, of course, DAPA is a crucial change in the Nation’s immigration law and policy -- and that is precisely why it could be created only by Congress, rather than unilaterally imposed by the Executive,” Texas said.

“President Obama’s executive action on immigration represents an unprecedented attempt to expand the power of the executive branch,” Texas Attorney General Ken Paxton said in a statement accompanying the brief. “The president alone does not have the authority to grant millions of illegal immigrants a host of benefits -- like Social Security and Medicare -- which should be reserved for lawful citizens. Rewriting national immigration law requires the full and careful consideration of Congress, and Texas will continue to fight this affront to the rule of law.”

Texas' latest filing with the Supreme Court comes after a procedural win for the Obama administration, which successfully opposed the state’s bid for an extension to respond to the appeal -- which, under court rules, could have pushed the case for resolution until after the presidential election. The move by Texas was widely viewed as an attempt to game the clock and prevent the Supreme Court from acting in the case before its current term ends in June, but the court instead set a deadline for the state to respond by Tuesday.

Toward the end of the brief, lawyers for Texas seem to take a more conciliatory tone and appear resigned to the Supreme Court getting involved in the dispute “if the case merits review.” It's still unclear whether the court will do so, but as things stand now, the justices could decide to hear the case following one of their January conferences, which would allow for additional briefing in February and March, oral arguments in April, and a decision by the end of June.

And if the court does add the case to its docket, it would join other blockbusters already under consideration, such as cases on abortion, affirmative action and the future of public unions. All of them, in one way or another, could energize candidates seeking the presidency.

The 26 states that signed on to the lawsuit are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.

Other states, cities and national lawmakers joined briefs in support of DAPA and the expanded DACA, arguing the policies are beneficial to the economy, public safety and those who live in the U.S.

"Each day that these reforms are delayed harms people who want nothing more than to come out of the shadows and live and work legally to support their families," Washington state Attorney General Bob Ferguson, who led one amicus brief, stated earlier this month. "This affects our friends, families, neighbors, and our state as a whole."

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