A short-handed Supreme Court will hear oral arguments Monday in the fight over President Obama’s executive actions on immigration, a case that could alter the fate of millions of people and become a flash point in the 2016 elections.
The court’s decision in United States v. Texas, which is expected in late June, will determine whether the administration can begin enrolling illegal immigrants in a federal program to grant them work permits without fear of deportation.
Obama’s use of executive power to establish the deferred-action program in November 2014 came after House Republicans blocked a legislative overhaul of border-control laws in Congress. But the president’s move outraged his detractors and led to a legal challenge from more than two dozen states, most of which have Republican governors.
The court battle presaged a divisive political fight over immigration on the presidential campaign trail, where Republicans Donald Trump and Sen. Ted Cruz, Texas, have promised to sharply reverse Obama’s policies and ramp up enforcement on the nation’s 11 million illegal immigrants. Hillary Clinton and Sen. Bernie Sanders, Vermont, the Democratic candidates, have backed the president’s initiatives and pledged to expand them.
White House officials professed confidence that the high court would overturn an injunction from a federal judge in Texas that blocked the deferred-action program last year. But they also suggested the president was eager to make his case to voters to highlight the stark divide between the parties.
“We are prepared to make a strong case, both on the political merits but also on the legal merits, that what President Obama is seeking to do . . . is actually good for the country,” White House press secretary Josh Earnest said. “And that’s an argument I suspect we’ll have multiple opportunities to make not just before the Supreme Court, but potentially over the course of the election as we’re debating all these policies.”
Emotions are running high. Advocates for immigrant rights said they expect hundreds of demonstrators outside the courthouse Monday, and several Democratic lawmakers, including Rep. Luis V. Gutiérrez , D-Ill., said they will attend the hearing.
In an unprecedented move, the court has granted the Republican-led House time to present its argument in support of the states that have opposed the Obama administration.
Opponents of the president’s efforts said the outcome will resonate in a campaign season that has been animated by the debate over immigration and Obama’s use of executive power.
“Whether the court upholds the president’s actions or rules against him, it’s going to affect the [presidential] race to some degree,” said Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for lower immigration levels. “Ironically, if they find for the president, it seems to me it would energize Republicans — and vice versa.”
Obama explained his deferred-action program as part of a broader effort to concentrate federal resources on hardened criminals and undocumented immigrants who have entered the country recently. The program is modeled after a smaller-scale 2012 initiative that has provided work permits for 700,000 immigrants who entered the country illegally as children.
The new regulations expanded the effort to cover the undocumented parents of U.S. citizens, provided they have not committed other crimes and have lived in the country since Jan. 1, 2010. That population is estimated at more than 4 million.
But Texas and 25 other states filed a federal lawsuit challenging the initiative, and U.S. District Judge Andrew Hanen of Brownsville, Texas, issued an injunction in February 2015 to halt the program a day before it was set to begin. The U.S. Court of Appeals for the 5th Circuit upheld the ruling late last year.
The Obama administration is challenging Texas’s legal standing to sue over border enforcement policies, which are the domain of the federal government. Texas officials have said that the state would incur new administrative fees, including to issue driver’s licenses, if the program moves forward.
The Supreme Court also will examine whether Obama’s policies are arbitrary and capricious; whether the administration failed to follow federal rulemaking requirements; and whether Obama’s deferred action program violates the Constitution’s “take care” clause that stipulates the president carry out laws set by Congress.
Legal analysts said that if the high court, which has just eight justices after the death of Antonin Scalia in February, deadlocks at 4-to-4, the lower-court ruling would remain in place. In that case, other states or advocacy groups could attempt to file suit in other jurisdictions in hopes of winning a favorable ruling to move forward with the program, analysts said.
“A 4-4 decision would leave a very complicated and confusing scenario in place,” said Brianne Gorod, chief counsel at the Constitutional Accountability Center.
For Obama, the outcome could help determine his legacy on immigration, which has been mixed over his time in office. Immigration rights advocates have criticized his administration for record levels of deportations: more than 2.5 million in all. But they have praised the president for using his executive power in 2012 to shield the younger immigrants, known as “Dreamers,” from deportation.
Simon Rosenberg, founder of NDN, a liberal think tank, pointed to the sharp reduction in overall deportations in recent years as the administration has sought to implement and strengthen guidelines that put the focus on felons and new arrivals.
“History books will show President Obama did far more, regardless of the outcome of this case, to improve the management of the border and the domestic immigration system than virtually anybody gives him credit for,” Rosenberg said. “If this case is decided in his favor, it will be an extraordinary achievement against incredible political opposition.”
But others said the president has moved too cautiously over the years to exert his powers.
“We provided advice that was hundreds of pages of actions the president could take under existing law. He was very conservative,” said Rep. Zoe Lofgren, D-Calif., who supports the deferred-action program. Asked whether Obama was out of options if he loses in the Supreme Court, she added: “We believe there are [more] things that administrations can do. We’ll have to wait and see. But I expect to win.”
(c) 2016, The Washington Post · David Nakamura
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