The U.S. Supreme Court heard oral argument earlier today in United States v. Texas, No. 15-674. Texas and 25 other states sued the federal government to prevent the implementation of deferred-action regarding certain undocumented immigrants.
Lyle Denniston has an excellent overview of the case and the oral argument in Oral Argument: Search for a Fifth Vote on Immigration at SCOTUSblog. And, of course, Nina Totenberg is always worth reading and listening to; her piece, with a byline shared with Eyder Peralta for NPR, is On Obama’s Immigration Actions, Supreme Court Seems Sharply Divided.
The suit was filed in the U.S. District Court for the Southern District of Texas. The judge who heard the case, Andrew Hanen, was tailor-made to issue an injunction barring the implementation of DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). The three-member panel at the U.S. Circuit Court of Appeals for the 5th Circuit upheld the injunction, 2-1.
So, facing the eight-member Court are the following questions: (1) Whether the states have standing to challenge the federal policies; (2) whether the federal government acted in an arbitrary and capricious manner; (3) whether adoption of the policies required adherence to the federal Administrative Procedure Act; and (d) whether following the policies means President Obama has failed to follow Article II, Section 3 of the U.S. Constitution, which directs presidents to “take care that the laws be faithfully executed … .”
I’m going to address these questions in reverse order, briefly. I don’t like arguments which begin with “In other cases” or “Yes, but what about what they did”; however, there are several cases in which presidents have not enforced immigration laws. Ronald Reagan did not send people back to Central America in 1987. George H.W. Bush did not send people back to China and Kuwait. George W. Bush did not send people back to El Salvador, acting at the request of the president of El Salvador.* And in none of these instances did anyone challenge the authority of the president to so act. The precedents matter because the Taking Care clause requires context—every law cannot be enforced in every instance—and no one should ignore at least four major incidents in less than 30 years.
The third and second issues relate to administrative law. I have not read or heard a significant argument that, assuming authority to adopt DACA and DAPA, the full-process associated with federal rule-making is required. Frankly, that process is wholly inconsistent with the enforcement of federal immigration laws. The notion of a notice and comment period—the process which is used after Congress passes a law and the enforcing agency must write rules to “fill in the blanks”—seems nonsensical when it comes to this area. (Frankly, what is sensible is a policy adopted by Congress, but the abject failure of Congressional majorities to do their job does, at some point, require lawful executive judgment and action.)
Then there is the matter of standing, or the right to sue the federal government. To sue the federal government, the suing party—individual, corporation, state, etc.—must suffer a concrete and particularized injury. Additionally, the relief the plaintiff seeks must be likely to redress the injury. Lots of debate on this issue, much of it wandering into a thicket involving state driver’s licenses for undocumented people, who pays, etc. Deep in the weeds stuff!
One last thing. Apparently, a big chunk of the discussion revolved around the phrase “lawful presence.” Expect those two words to factor into a decision, one way or another.
A decision will likely issue late in June. A 4-4 tie leaves the injunction in place, and while there may be some debate about the geographical range of the injunction—5th Circuit states or all suing states, or just Texas—the commentators seem to be saying a tie will render DACA and DAPA old, tied, and irrelevant acronyms.
*Thanks to Sam Kleiner and Dean Erwin Chemerinsky of the UC-Irvine School of Law for Texas judge’s immigration ruling is full of legal holes, their L.A. Times February 18, 2015 op-ed. They lay out the issues very well, and provided the historical references on which I have relied.