Texas v. US: After Scalia's Passing, Obama's Immigration Order

I recently interviewed Harry DeMell, an immigration lawyer since 1977 and a member of the American Immigration Lawyers Association, about the current immigration crisis.

Schupak: How do you think Justice Scalia's death will affect the Texas v. US case?

DeMell: I think there will be a stalemate on this issue and that's a good thing.

Schupak: Remind our readers what this case is about.

DeMell: Well, president Obama issued an administrative order a few years ago allowing certain people who were brought here as children and have been living here for many years to remain here, work legally and travel. This is not the same as a green card. The president then issued an order a couple of years later allowing the parents of these children the same rights. Several states sued the federal government to stop the second order. The states won in the district court in Texas and then won again at the Court of Appeals. The case was appealed to the Supreme Court where it's being decided.

Schupak: So how has Justice Scalia's death has effected the outcome?

DeMell: it is unlikely that either side will have a majority. I expect a four, four vote on the appeal and that will leave the appeals court decision standing. It means that the president's executive order is squashed.

Schupak: And you think that's a good thing. Why?

DeMell: Any court ruling here would make a bad president. If the case would be overturned the president would have increased powers to make these decisions. People who like President Obama haven't thought it through. There may be a future president who will use this power in ways that they would not want. If the president's order is ruled unconstitutional it is possible that a future president might not have the power he or she might need. I think it's better that a decision on this issue be reserved for a better case in the future.

Schupak: Won't this lead to the deportation of many of these parents?

DeMell: The decision for that is a political one not a judicial one. Nine appointed lawyers should not have the power to make this decision. There is a procedure for that.

Schupak: What procedure?

DeMell: Well either congress passes a law or the president follows the law as outlined by the Administrative Procedure Act.

Schupak: Congress is not likely to pass a law during this election cycle.

DeMell: Yeah. But the president might have complied with the law, issued proposed regulations in this regard and he would have been on significantly stronger ground. He didn't because he doesn't want to admit he has limited powers. The constitution requires compliance with the law, though.

Schupak: What happens if a new justice is appointed to the Supreme Court?

DeMell: If that new justice has not participated in the argument and decision he or she can't vote. Nothing changes. It's too late to appoint someone and effect this case.

Schupak: So what becomes of these parents?

DeMell: It looks like it's up to the next administration.

Schupak: What's your solution.

DeMell: My solution would be to change our deportation laws to allow more discretion to our immigration judges in a deportation hearing and allow some of these people to stay when they can show a certain level of hardship to the child, a history of paying taxes and of good moral character.

Schupak: Wouldn't that burden our courts?

DeMell: Well Andy, courts are established to allow judges to use their judgment. We don't want to encourage people to come and remain in the US illegally. That would open the barn door and encourage possibly millions to come here, have children and get benefits. On the other hand, we want to have a door opened for compassionate cases. I say, let the judges judge.

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