The Obama administration asked the Supreme Court on Friday to overturn lower courts and declare that the president has the authority to allow millions of illegal immigrants to remain and work in the United States without fear of deportation.
The administration petitioned the justices to step in only 10 days after a federal appeals court ruled against President Obama’s program. Unless the Supreme Court agrees to consider the issue and overrules the lower court, Obama has little chance of carrying out the program before he leaves office in January 2017.
The case raises major issues involving the separation of powers and federalism. The issue has flummoxed Congress and emerged as one of the major flash points of disagreement between the Democrats and Republicans running for president.
Obama announced the program in an executive order exactly a year ago Friday after House Republicans blocked an effort to pass a comprehensive immigration bill.
Texas and 25 other states sued, saying that Obama had exceeded his authority with a plan that would allow between 4 million to 5 million illegal immigrants to remain in this country.
The administration contends that the states have no legal standing to sue because it is up to the federal government to set immigration policy and that the Department of Homeland Security did not violate federal statutes in devising the program.
As a practical matter, the government says setting priorities about whom to deport is a practical response to the fact that Congress has given the administration only enough money to deport no more than about 400,000 of the nation’s estimated 11 million illegal immigrants.
Obama’s program, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would allow illegal immigrants in those categories to remain in the country and apply for work permits if they have been here for at least five years and have not committed felonies or repeated misdemeanors.
The administration says the program is simply a form of prioritizing which illegal immigrants the government will move first to deport.
In his petition, U.S. Solicitor General Donald B. Verrilli Jr. said the appeals court had blocked “a federal immigration enforcement policy of great national importance, and has done so in violation of established limits on the judicial power. If left undisturbed, that ruling will allow states to frustrate the federal government’s enforcement of the nation’s immigration laws.”
Verrilli said that lower court ruling “will force millions of people — who are not removal priorities under criteria the court conceded are valid, and who are parents of U.S. citizens and permanent residents — to continue to work off the books, without the option of lawful employment to provide for their families. And it will place a cloud over the lives of hundreds of thousands of people who came to the United States as children, have lived here for years, and been accorded deferred action.”
But the states have said Obama’s program is an illegal power grab by the president, initiating on his own a program that Congress would not authorize.
Texas and others said the plan runs afoul of federal laws and saddles states with providing benefits for millions of people who would become eligible for work permits and other forms of government aid.
“Three times federal courts have ruled in our favor, and we stand ready to continue defending the rule of law against the president’s unconstitutional use of executive power,” said Cynthia Meyer, a spokeswoman for Texas Attorney General Ken Paxton (R).
A federal district court and then two panels of the U.S. Court of Appeals for the 5th Circuit in New Orleans agreed with the states’ arguments. Both courts have kept the program from being implemented.
In the most recent decision, U.S. Circuit Judge Jerry Smith wrote that DAPA goes beyond the law enforcement concept of “prosecutorial discretion,” in which a government with limited resources sets priorities for enforcement.
“Deferred action . . . is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens,” he said. “Though revocable, that change in designation would trigger” eligibility for federal and state benefits “that would not otherwise be available to illegal aliens.”
Smith was joined by Circuit Judge Jennifer Walker Elrod.
Circuit Judge Carolyn Dineen King dissented. She said the program was exactly the kind of decision about deportation that the law entrusts to the executive branch. Those eligible for the program must apply, and decisions are made on a case-by-case basis, she said.
“Both ‘lawful presence’ and ‘deferred action’ refer to nothing more than DHS’s tentative decision, revocable at any time, not to remove an individual for the time being — i.e., the decision to exercise prosecutorial discretion,” she wrote.
She added: “The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process. . . . This case essentially boils down to a policy dispute.”
King also criticized her colleagues for delaying the decision; the ruling saying the law could not proceed took four months.
Time is critical if the Supreme Court is to review the matter while the Obama administration remains in office.
Generally, the court must accept a case by January to schedule it for oral arguments and a decision before the court’s term ends in June. Verrilli’s filing Friday starts a process that would allow the court, absent any delays, to do just that.
But experts on the court note that the justices could also make special accommodations for a case that carries such important questions about federalism and the balance of power between the political branches of government.
If the court accepts the case, the decision would come just months before Americans go to the polls to elect a new president.
It would be adding to a docket filled with election-year controversies: a review of abortion restrictions passed by the states, whether universities may consider race when making admission decisions, and whether religious freedom means that some organizations do not have to comply with a mandate in the Affordable Care Act requiring insurance coverage of contraceptives for women.
Verrilli’s petition relies heavily on a 2012 Supreme Court decision that struck down parts of an Arizona law restricting immigration and said “the removal process is entrusted to the discretion of the federal government.”
The administration challenges the lower court’s findings that Texas had legal standing to sue because DAPA’s designation that the immigrants would be legally present in this country meant they would be entitled to state driver’s licenses. The petition said that was because of Texas’s rules, not anything that is in the president’s order.
Verrilli also disputed the lower court’s ruling that the DHS secretary had exceeded his authority in issuing “guidance” about how to treat the illegal immigrants.
Under the appeals court’s reasoning, Verrilli said, immigration statutes allow the secretary to decide that individuals may remain in the country for a period of time “but is barred from enabling them to work lawfully to support themselves and their families while they are here. Congress did not constrain the secretary’s broad discretion to such half-measures.”
The case is United States v. Texas.