Supreme Court Will Rule On Obama's Immigration Policy Before 2016 Election

The justices added an unexpected constitutional wrinkle to the case.

20/01/2016 1:34 AM AEDT | Updated 20/01/2016 3:20 AM AEDT
Susan Walsh/Associated Press
Immigration advocates rally in front of the U.S. Supreme Court as the justices consider whether to hear an appeal over President Obama's executive actions on immigration.

WASHINGTON -- President Barack Obama's executive actions on immigration, stuck in legal limbo for the past year, will get a Supreme Court hearing before the 2016 presidential election.

The justices announced their decision to hear the case, known as United States v. Texas, on Tuesday, after their private conference meeting Friday morning. For weeks, the federal government and Texas had fought a procedural battle over whether the justices should take up the case before the end of June, the close of the court's current term.

The president can now seek Supreme Court vindication of his decision in November 2014 to defer the deportation of millions of undocumented immigrants, who have waited for years for comprehensive immigration reform.

But the court added an unexpected wrinkle when it agreed to hear the case: It asked the federal government and the states suing it to address whether the executive actions on immigration violate the Constitution's take care clause -- an issue that was not definitively decided by lower courts that have ruled on the case. This means lawyers for both sides will essentially have to argue whether Obama's decision to defer deportation is an abdication of his duties as chief executive.

This unprompted move by the justices turns the case into a potential constitutional showdown -- alongside others the court has heard or will hear on hot-button issues such as abortion, affirmative action, voting rights and the fate of public-sector unions.

Under the court's rules, the case is likely to be heard in April, with a decision expected by the end of June -- in time to galvanize advocates and opponents of immigration reform and to add further fuel to the presidential election.

Though the Supreme Court retains wide discretion to accept or reject cases, its decision to hear a multi-state challenge to the legality of Obama's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and an expanded version of his 2012 Deferred Action for Childhood Arrivals (DACA) program was widely expected.

Evan Vucci/AFP/Getty Images
The justices agreed Tuesday to hear a very timely dispute over the legality of Obama's deferred deportation policy.

The two programs have been on hold since February 2015, when a federal judge in Texas issued a nationwide injunction that effectively prevented their implementation. Reasoning that the deferred deportation efforts are likely to cause "harm" to Texas and 25 other states that sought to block them, Judge Andrew Hanen ruled that the Obama administration had failed to follow proper administrative procedures before announcing the programs.

Since then, government lawyers have waged a bruising appeals battle to undo the injunction. The most recent loss for the Obama administration came in November, when the conservative U.S. Court of Appeals for the 5th Circuit refused to lift the hold.

The federal government appealed the 5th Circuit's decision to the Supreme Court later that month -- exactly one year to the day that Obama had announced the deportation relief. In its appeal, the government urged the justices to reverse the 5th Circuit's ruling, arguing that Texas and the other states have no legal right to intrude on the prerogatives of the executive branch, which Congress has vested with near-unfettered discretion to administer immigration laws and policy.

The Supreme Court's decision to hear the case this term amounts to the federal government's first significant victory in the legal dispute.

When they encounter a removable alien, immigration officials, as an initial matter, must decide whether it makes sense to pursue removal at all. U.S. Solicitor General Donald Verrilli

"A principal feature of the removal system is the broad discretion exercised by immigration officials," wrote U.S. Solicitor General Donald Verrilli in the administration's appeal. "When they encounter a removable alien, immigration officials, as an initial matter, must decide whether it makes sense to pursue removal at all."

Beyond the ramifications for immigration law, the Supreme Court's decision to hear the case matters greatly to those hoping to benefit from the programs.

Brenda Barrios, 30, has two U.S. citizen children and would be eligible for the deferred action program for parents. She came to the U.S. from Guatemala 12 years ago with her now-husband, and their sons are 10 and 3 years old.

The 10-year-old is beginning to grasp his parents' lack of legal status, she said. A few weeks ago, he saw a text message to his mother from a friend warning her to be careful, given the recent deportation raids -- although the target of those actions has been families who came to the U.S. more recently.

Her son cried and said he wanted her to stay with him, Barrios said. Now he becomes nervous when there is someone at the door.

"This is a human right for our kids, for us, because we are humans," Barrios said. "We are not aliens or monsters."

Nora Hernandez, 30, would be eligible for deportation relief under the expanded DACA program, but is not now. She initially came to the U.S. from Mexico when she was 12 years old, but then left the country and re-entered in 2007. Unfortunately for her, she returned after the June 15, 2007, cutoff for continuous presence in the U.S. -- one of the criteria for eligibility under the initial DACA program. The expanded DACA would be open to certain people who have lived continuously in the U.S. since Jan. 1, 2010. It would also eliminate an upper age cap on the program, making it available to more people who came to the country as children.

Hernandez was part of a group of undocumented immigrants who fasted outside the 5th Circuit in October, in an attempt to pressure the court to issue a ruling on the deferred-action lawsuit. She said she is confident the case will eventually go their way.

"I have faith," she said. "I think the Supreme Court will vote yes on this case and it will give us relief. We've been fighting for this for a long time, and we know it's fair."

White House spokeswoman Brandi Hoffine said in a statement that the administration was "pleased" that the Supreme Court was going to review the case. 

"The deferred action policies announced by the President in November 2014 will provide greater opportunities for immigrants to contribute to our society -- opportunities for young people who came to our nation as children and grew up pledging allegiance to our flag, as well as parents of U.S. citizens and lawful permanent residents who have lived here for years and are already making contributions to our communities and economy. The policies will make our communities safer. They will make our economy stronger. And they are consistent with the actions taken by presidents of both parties, the laws passed by Congress, and the decisions of the Supreme Court.  We are confident that the policies will be upheld as lawful."

Texas Attorney General Ken Paxton, who is leading the lawsuit against the programs, said in a statement that "in deciding to hear this case, the Supreme Court recognizes the importance of the separation of powers."

"As federal courts have already ruled three times, there are limits to the President’s authority, and those limits enacted by Congress were exceeded when the President unilaterally sought to grant ‘lawful presence’ to more than 4 million unauthorized aliens who are in this country unlawfully. The Court should affirm what President Obama said himself on more than 20 occasions: that he cannot unilaterally rewrite congressional laws and circumvent the people’s representatives."

This piece has been updated with comments from the White House and the Texas attorney general. 

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