Does President Obama have the power to change immigration policy through a deferred action immigration program without going through Congress? The Supreme Court indicated today that it will likely decide that question soon.
The Court granted certiorari in United States v. Texas, a case wherein a federal district court in Texas entered a preliminary injunction stopping Obama’s immigration program before implementation, and a divided 3-judge panel of the Fifth Circuit affirmed that injunction. In other words, the Supreme Court agreed to hear arguments, and decide whether Obama’s executive action immigration plan will remain enjoined. In its opinion, the Fifth Circuit reasoned that the power the administration claimed would allow it “to grant lawful presence and work authorization to any illegal alien in the United States.”
Additionally, the Court added a question undecided in the courts below for the parties to brief: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. 2, § 3.”
The “Take Care” clause states that the President must “take care that the laws be faithfully executed.” One issue in the case is whether the states have standing to contest Obama’s actions. By adding this constitutional question, the Court may be signaling it has little issue with standing.
What is a deferred action immigration program?
Fourteen months ago President Obama created a program called DAPA – Deferred Action for Parents of Americans and Lawful Permanent Residents. DAPA spares parents of illegal immigrant children deportation, and provides them work permits, as well as health care, disability, and retirement benefits. 26 states sued over this executive action program, including Texas (and Utah).
DAPA is an extension of an even earlier 2012 Obama executive action – Deferred Action for Childhood Arrivals (DACA), which delayed deportation of undocumented immigrants brought to the country as children before their 16th birthday, if other requirements were met. The DACA program affected approximately 700,000 immigrants. DAPA affects between 4 and 5 million.
Case law supports some degree of discretion in immigration enforcement. So, is this just a question of enforcement discretion? Or, has the President failed to take care that the laws be faithfully executed? That is the question the Court will decide.
The case will be argued by April and decided by June.