Wednesday, January 20, 2016
Immprof Pratheepan (Deep) Gulasekaram has a take on the US v. TX litigation over at the American Constitution Society blog.
Gulasekaram "contextualiz[es] the political and legal dynamics that have culminated in this landmark case, highlighting the role both partisanship and federalism have played in landing Texas before the high Court." He notes that post-9/11 immigration policy has been characterized by insurmountable party polarization. That, in turn, has had two big consequences:
First, states have stepped more fully into the legislative void, enacting an unprecedented volume of both restrictionist and integrationist policies. Second, the federal executive branch has become much more conspicuous and robust in fashioning immigration policy through both enforcement calibration and litigation. The Texas case implicates both trends, and their partisan roots, simultaneously.
Interestingly, Gulasekaram sees the Texas litigation as the "flipside" of SCOTUS' 2012 ruling on Arizona v. United States.
Whereas in 2012, it was a Democratic federal executive using the judicial forum to shut down immigration enforcement regulations from Republican states, in 2016 it is a coalition of Republican states suing to derail the enforcement policy of that same Democratic President. Unlike Arizona, however, it remains to be seen whether the state of Texas can actually invoke the federal court’s power to adjudicate the legality of the President’s program.
The problem, he writes, may well be whether the states have standing to litigate at all. But, depending on how that issue plays out, "the current Texas case could offer states a new avenue to disrupt federal administrative policies and indirectly influence immigration enforcement."
He concludes: "we might see federal courts increasingly used as the battlegrounds" for the highly partisan issue of immigration policy.