WASHINGTON – The enduring battle between President Barack Obama’s ambitious social agenda and Republican opposition to it will get another hearing at the Supreme Court on Monday, and this time the subject is the politically explosive issue of immigration.
The justices once again are called upon to review an Obama administration priority challenged by conservative Republicans in the states and in Congress. In dramatic, high-profile cases, the court twice has saved the president’s Affordable Care Act from conservative legal challenges.
This time, the justices will confront a fundamental tension of Obama’s tenure: whether the president is correctly using the substantial powers of his office to propel the nation past political gridlock or whether he has ignored constitutional boundaries to unilaterally impose policies that should require congressional acquiescence.
Obama’s immigration program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), has split the 2016 presidential candidates. Republicans have said they would reverse it immediately if it took effect. Democratic hopefuls have said they would expand upon it.
The program would allow illegal immigrants in the affected categories to remain in the country and apply for work permits if they have been here at least five years and have not committed felonies or repeated misdemeanors. Obama announced the executive action in November 2014 after House Republicans did not act on comprehensive immigration reform.
The administration says the program is a way for a government with limited resources to prioritize which illegal immigrants it will move first to deport. As a practical matter, the government has never deported more than 500,000 undocumented immigrants per year and often sends home far fewer than that.
But Texas and the Republican-led states sued to stop the initiative, and a federal district judge in Texas and then a panel of the U.S. Court of Appeals for the 5th Circuit said the program could not be implemented.
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.
The White House said it makes sense to concentrate on border security and deporting illegal immigrants who commit crimes, rather than deporting those who have made a life in this country and have connections through their children. It notes that the program does not provide a path to citizenship, and that even those who qualify for the program could be deported at any time.
One important question in the case is Texas’s legal standing to sue. District Judge Andrew S. Hanen agreed with the state that, because it would face a financial cost in providing driver’s licenses to those covered by the new program, it had standing to challenge the initiative.
The administration countered that Texas was not required to issue the licenses. It should not be able to injure itself, the White House argued, to achieve standing to sue.
In the 2 to 1 decision by a panel of the U.S. Court of Appeals for the 5th Circuit, U.S. Circuit Judge Jerry Smith rejected the administration’s argument that DAPA was a form of “prosecutorial discretion” in which a government with limited resources sets priorities for enforcement.
The program, Smith wrote, “is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens. Although revocable, that change in designation would trigger eligibility for federal and state benefits “that would not otherwise be available to illegal aliens.”
Two justices will be closely watched in the case. Justice Anthony M. Kennedy wrote the court’s decision in 2012 striking part of Arizona’s attempt to crack down on illegal immigrants in the state. The Obama administration’s brief relies heavily on Kennedy’s finding that the federal government and the executive have considerable power in designing the nation’s immigration policy.
