Earlier this month, the U.S. Supreme Court agreed to review (granted certiorari) a case that exemplifies an ongoing immigration controversy, and in doing so, rule on a debate about the balance of powers within the United States government. Led by Texas, 26 states filed a complaint in federal court to block the implementation of an executive directive issued by the Obama administration. The directive in question deprioritized about 4.9 million of the estimated 11.9 million undocumented immigrants currently living in the United States. A Texas district court blocked the program on procedural grounds in February 2015, and this decision was upheld on appeal by the divided 5th Circuit U.S. Court of Appeals. At the heart of the matter is a disagreement about immigration policy and the role of the executive in implementing policies regarding immigration.
The policy contested by Texas is a 2014 executive directive issued by the head of the Department of Homeland Security (DHS) expanding an existing program called Deferred Action for Childhood Arrivals (DACA) and creating a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The current DACA program, implemented in 2012, authorizes undocumented immigrants brought here as children (often called “DREAMers”) to work in the United States legally without fear of deportation, after meeting certain requirements and at the discretion of U.S. Citizenship and Immigration Services (USCIS). The November 2014 policy expands the group of individuals eligible for the DACA program and grants relief for three years at a time (instead of the two years granted under the original DACA program). DAPA grants similar relief, but for the undocumented parents of U.S. citizens and lawful permanent residents.
The Supreme Court will hear arguments on four questions: whether the states can sue the government on this matter; the executive branch’s authority to create the DACA/DAPA programs; whether the government needed to notify the public and accept comments on the policy before implementing it; and if the policy violates the “Take Care” clause of the Constitution.
Whether the states suing have standing. In order to bring any lawsuit in the United States, including the matter at hand, the plaintiff must show that he or she has a concrete interest in the conflict before the court. For example, Sheriff Arpaio of Maricopa County, Arizona, sued Obama on the same issue, arguing that the DAPA/DACA programs would cause a “crime wave.” His case was dismissed due to lack of standing, the D.C. Circuit Court concluding “that Sheriff Arpaio has failed to allege an injury that is both fairly traceable to the deferred action policies and redressable by enjoining them.” In the present case, Texas claims that the plaintiff states have standing to sue due to the cost incurred by state-subsidized driver’s license programs for DACA/DAPA recipients. The lower courts agreed with this, but rejected arguments based on the costs for medical care and public education. In turn, the Obama administration argues that the Constitution and legal precedent assigns the power to create immigration policies exclusively to the federal government, and that a state cannot acquire standing through the “collateral consequences” felt by programs that the state itself voluntarily created.
The executive branch’s authority to create the DACA/DAPA programs. The federal government argues that Congress expressly assigned the Secretary of DHS the role of “[e]stablishing national immigration enforcement policies and priorities,” citing 6 U.S.C. §202(5) as well as Arizona v. United States, a 2012 case that reaffirmed the federal government’s exclusive dominion over immigration laws and policy. In its complaint, Texas argues that the current DACA policy is not reviewed on a case-by-case basis, that the program carries benefits beyond non-enforcement such as employment authorization, and argues that the “unilateral suspension of the Nation’s immigration laws is unlawful.”
Whether the federal government was required to provide public notice. The federal Administrative Procedure Act (APA) requires a notification and public hearing process whenever a federal executive agency issues certain types of “rules.” Texas and its co-plaintiffs argue that the executive directive implementing the DACA/DAPA policies violates the APA. Conservative Judge Andrew Hanen in the lower court accepted this argument and used it as the basis of his ruling in Texas’ favor. However, the federal government argues that because the DACA/DAPA programs are “implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements,” an argument with which the dissenting opinion in the appeals court agreed.
Whether the policy violates the Constitution’s “Take Care Clause.” The “Take Care Clause” is within Art. II, §3 of the Constitution, a section that lays out the President’s role, including the command that “he shall take Care that the Laws be faithfully executed.” In their complaint before the district court, Texas argues “[t]he Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws — not rewrite them under the guise of executive ‘discretion.’” The U.S. government consists of three branches: the executive, the judiciary, and the legislative branches. Each has a distinct role – put very simply, the legislative branch makes the laws, the executive branch executes them, and the judicial branch upholds them and the Constitution of the United States. This separation of powers provides a check on any one branch, and Texas is arguing that by introducing the DACA/DAPA policies, the executive branch overstepped its powers by effectively creating laws rather than executing them.
The Take Care clause issue is a larger argument that the lower courts declined to rule on, instead focusing on the procedural issues related to the APA. The fact that the Supreme Court directed the parties to write briefs on this larger question is promising for an end to this two-year court battle. As Bradley Jenkins, an attorney with Catholic Legal Immigration Network, observed in an interview with NBC News Latino, “This is a signal that the Court wants to give a final answer on the validity of the executive actions and is not inclined to send the case back to (U.S. District) Judge (Andrew) Hanen.”
For legal scholars and commentators, this case may be an interesting intellectual exercise in constitutional legal theory in light of the exploration of the “Take Care Clause,” which has not historically been enforced by the Supreme Court. But for the populations hoping to benefit from the executive directives, any decision will have limited long-term impact. If the Supreme Court affirms the lower court’s ruling, the potential beneficiaries of expanded DACA and DAPA will see little change. But even if the Supreme Court overturns the lower court’s ruling, they must face a presidential election only months later with grim prospects if a Republican is elected, as executive policies can change in an instant under a new administration.
Recommended Further Reading
Amy Howe, “Court will review Obama administration’s immigration policy: In Plain English,” SCOTUS Blog, January 19, 2016.
American Immigration Council, “Understanding the Legal Challenges to Executive Action,” January 21, 2016.