Supreme Court to Hear Challenge to Obama Immigration Actions
By ADAM LIPTAK and MICHAEL D. SHEARJAN. 19, 2016 261 COMMENTS
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Immigration supporters from CASA de Maryland, an advocacy group, rallied outside the Supreme Court on Friday. Credit Doug Mills/The New York Times

WASHINGTON — The Supreme Court said Tuesday that it would consider a legal challenge to President Obama’s overhaul of the nation’s immigration rules. The court, which has twice rejected challenges to Mr. Obama’s health care law, will now determine the fate of one of his most far-reaching executive actions.

Fourteen months ago, Mr. Obama ordered the creation of a program intended to allow as many as five million illegal immigrants who are the parents of citizens or of lawful permanent residents to apply for a program sparing them from deportation and providing them work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

 

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The president has said the program was the result of years of frustration with Republicans in Congress who had repeatedly refused to support bipartisan Senate legislation to update immigration laws. In an Oval Office address just before Thanksgiving in 2014, Mr. Obama excoriated Republicans for refusing to cooperate and told millions of illegal immigrants, “You can come out of the shadows.”

But the president’s promise has gone unfulfilled. A coalition of 26 states, led by the attorney general in Texas, a Republican, quickly filed a lawsuit accusing the president of ignoring federal procedures for changing rules and of abusing the power of his office by sidestepping Congress.

In February, Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., entered a preliminary injunction shutting down the program while the legal case proceeded. The government appealed, and on Nov. 9 a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, affirmed the injunction.

If the Supreme Court upholds Mr. Obama’s actions, the White House has vowed to move quickly to set up the DAPA program and begin enrolling immigrants before his successor takes over early next year. Democratic presidential candidates have said they will continue the program, but most of the Republicans in the race have vowed to dismantle it and redouble immigration enforcement.

The administration, fearing that the program could remain frozen through the balance of Mr. Obama’s presidency, had asked the court to move quickly. On that point, at least, the court agreed, and it now appears that the case will be argued in April and decided by the end of June.

As is their custom, the justices gave no reasons for agreeing to hear the case, United States v. Texas, No. 15-674.

The court did broaden the scope of the case, asking the parties to address an additional and fundamental question: whether the administration’s plan violates the constitutional command that the president “shall take care that the laws be faithfully executed.”

The new case joins a crowded docket, including cases on abortion, affirmative action, public unions, voting rights and religious liberty. The decisions in all of them will probably land in the late spring and early summer, as the presidential election enters its final stages.

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In their written arguments before the court, the states acknowledged that the president has wide authority over immigration matters, telling the justices that “the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” Their quarrel, they said, was with what they called a blanket grant of “lawful presence” to millions of immigrants, entitling them to various benefits.

In response, Solicitor General Donald B. Verrilli Jr. told the justices that “lawful presence” is merely what has always followed from the executive branch’s decision not to deport someone for a given period of time.

He added that the consequences of allowing immigrants to be lawfully present were positive. “Without work authorization,” Mr. Verrilli wrote of the people eligible for the program, “they are more likely to work for employers who will hire them illegally, often at below-market wages, thereby hurting American workers and giving unscrupulous employers an unfair advantage.”
Much of the briefing so far has been focused on the threshold question of whether the states have suffered the sort of direct and concrete injury that gives them standing to sue. The question will play a major role as the Supreme Court considers the case.

Judge Jerry E. Smith, writing for the majority in the appeals court, said the states had standing to challenge the program under a 2007 Supreme Court decision that said Massachusetts and other states were entitled to sue the Environmental Protection Agency over its refusal to regulate motor vehicle emissions contributing to climate change.

Judge Smith said Texas would suffer a similarly direct and concrete injury in having to spend millions of dollars to provide driver’s licenses to immigrants as a consequence of the federal program.

Mr. Verrilli told the justices that Texas’ injury, such as it was, was self-inflicted, a product of its own decision to offer driver’s licenses to people lawfully in the United States at reduced cost.
Texas responded that being required to change its laws is itself the sort of harm that confers standing. “Texas could avoid the driver’s-license-cost injury only by changing its policy and making driver’s licenses less affordable,” the states told the justices. “That is itself an injury, because Texas has a sovereign interest in enforcing its legal code.”

Judge Hanen grounded his injunction on the Obama administration’s failure to give notice and seek public comments on its new program. He found that notice and comment were required because the program gave blanket relief to entire categories of people notwithstanding the administration’s assertion that it required case-by-case determinations about who was eligible for the program.

The appeals court affirmed that ruling and added a broader one. The program, it said, also exceeded Mr. Obama’s statutory authority.