Wednesday, December 30, 2015
Lyle Denniston on SCOTUSBlog reports on the brief filed in the Supreme Court yesterday by the State of Texas, representing 26 states, in opposition to the petition for certiorari filed by the U.S. government in United States v. Texas. Here is the brief. The United States seeks review of the decision of the U.S. Court of Appeals for the Fifth Circuit affirming an injunction barring the implementation of the expanded deferred action program (including the Deferred Action for Parents of Americans (DAPA) program) announced by President Obama in November 2015. For links to an on-line symposium with commentary by immigration scholars on the Fifth Circuit's decision, click here.
As Denniston summarizes, the states urged the Supreme Court on Tuesday to leave intact the lower court order blocking any enforcement of that policy. But, the states went further; if the Court chooses to step in, the states argued, it should broaden the review to rule on their claim that the plan is unconstitutional. Up to this point, the constitutionality of the policy itself has not been decided by lower courts, and the government did not raise that question in its cert petition. Nonetheless, the states contend that, if the Court grants review, it should find that the expanded deferred action program violates the separation of powers doctrine, by intruding on Congress’s lawmaking power, and also violates the president’s constitutional duty to enforce existing immigration laws.
With the state's opposition having been filed, it remains possible for the Court to grant the petition for cert, allow for full briefing on the merits of the case, hold oral argument, and issue a ruling before the end of the 2015 Term in June.
These are the argument headings from the States' brief. There is nothing too surprising here:
I. The court of appeals correctly upheld the preliminary injunction.
A. Respondents have standing.
B. DAPA is reviewable.
1. DAPA is reviewable agency action.
2. Respondents satisfy the APA’s zone-of-interests test.
C. DAPA is unlawful.
1. DAPA required notice and comment.
2. DAPA is contrary to law and violates the Constitution.
II. Certiorari is not warranted at this stage.