Thursday, June 23, 2016
What the Supreme Court's "Decision" in United States v. Texas Means: Back to the Drawing Board on Comprehensive Immigration Reform
The U.S. Supreme Court today issued its long-awaited ruling in United States v. Texas. The Court affirmed the Fifth Circuit's decision by a 4-4 vote. opinion. The result is that the preliminary injunction remains in place and that the expanded deferred action program is on indefinite hold.
As ImmigrationProf readers well know, the case involved review of a preliminary injunction entered by federal district Judge Andrew Hanen -- who Professor Steve Legomsky has characterized as "out of control" in this case -- and affirmed by a 2-1 U.S. Court of Appeals for the Fifth Circuit. The injunction put on hold the Obama administration's efforts to implement the Deferred Action for Parents of Americans program (DAPA), announced in November 2014, as well as expansions to the Deferred Action for Childhood Arrivals program (DACA), which was originally implemented in 2012.
In a post on SCOTUSBlog, I previously highlighted the pivotal Article III standing issue in United States v. Texas, namely whether Texas and the other states had standing under the U.S. Constitution to challenge the national immigration program. My fear has been that, if allowed to stand, the Fifth Circuit’s finding that the states have standing based on an the injuries alleged in this case (the costs to Texas of issuing subsidized driver's license to deferred action recipients), to derail discretionary federal immigration enforcement decisions could open the door to the use of litigation in the federal courts for partisan political ends in many controversial areas of law enforcement, from income tax enforcement actions to marijuana prosecutions. Amanda Frost for SCOTUSBlog summarized the contrasting approaches of commentators to the issue of standing in this case.
The oral arguments in United States v. Texas focused on Article III standing and paid no attention to the "Take Care" claim of the state of Texas. The states contended that the President in DAPA had violated his constitutional obligation in Article II, sec. 3 that he "take care that the laws be faithfully executed." At oral argument, there was no questions from the justices on the “Take Care” argument. The Court previously had ordered the parties to brief the issue. Nor did any of the advocates raise the issue at the oral argument.
In important respects, United States v. Texas is simply the latest skirmish in the long debate over immigration reform. Comprehensive immigration reform bills have been debated in Congress for more than a decade, with some versions offering a path to legalization for the 11 million to 12 million undocumented immigrants living in the United States and the various incarnations of the DREAM Act, which would provide relief to undocumented youth.
It was precisely because of the stalemate in Congress that President Barack Obama announced measured steps in an attempt to reduce some of the hardships faced by undocumented immigrants. In November 2014, the President announced the “deferred action” program known as DAPA (Deferred Action for Parents of Americans) for undocumented parents of U.S. citizens and lawful permanent residents. The program built on the previous Deferred Action Program for Childhood Arrivals (DACA) program, which was announced in June 2012 and implemented later that summer. The program recently celebrated its fourth birthday and has provided much-needed relief (although limited in scope) to undocumented immigrants.
“Deferred action” means that the U.S. government will not focus its immigration enforcement efforts on removing undocumented immigrants who are otherwise law-abiding. It is a kind of prosecutorial discretion routinely employed by government in the enforcement of the law and reflects the setting of priorities in law enforcement. In this instance, the Obama administration through the new Priority Enforcement Program , which was announced by Department of Homeland Security Secretary Jeh Johnson in November 2014 with the expanded deferred action programs, has decide to devote its immigration enforcement resources on noncitizens convicted of crimes -- and thus to focus removal efforts on those noncitizens most likely to pose a threat to public safety.
Deferred action is no path to legalization or citizenship and should not be mistaken as some kind of “amnesty.” It instead is a temporary reprieve from removal. One important aspect of the program has been to allow for the issuance of work authorization to deferred action recipients, which allows them to work lawfully in the United States. Only Congress could create a durable path to legalization or citizenship for undocumented immigrants. Texas and 26 states do not agree with the administration’s policy choices. They sued in federal court to put the Obama immigration plan on hold. A District Court judge in south Texas barred its implementation. A divided panel of the Court of Appeals upheld that ruling.
In United States v. Texas, the Supreme Court had the opportunity to consider the lawfulness of the deferred action programs. The untimely death of Justice Antonin Scalia, and the Senate’s refusal to move on the confirmation of Merrick Garland, complicated matters and meant that only eight justices on the court. A 4-4 split means that the lower court injunction prohibiting the implementation of Obama’s executive action.
The case raised an array of technical legal issues. The two central are whether the states have what is known as “standing” under Article III of the U.S. Constitution to sue in federal court and whether the Obama administration failed to comply with the procedural requirements of the Administrative Procedure Act in adopting the new program.
Behind the narrow legal issues, what truly is at the core of the dispute is the debate over immigration reform. Congress still needs to address immigration reform. Deferred action does not offer permanent relief for the millions of undocumented immigrants like that which would be provided by many comprehensive immigration reform proposals. Indeed, a future president – a President Donald Trump, for example – might try to deport any deferred action recipients. Immigration reform therefore is likely to continue to be a big issue in the 2016 presidential campaign.
As United States v. Texas makes clear, the nation desperately need meaningful reform of the immigration laws. The current comprehensive immigration law, the Immigration and Nationality Act of 1952, was forged at the height of the Cold War and is nothing less than antiquated and ill-fitted to addressing the contemporary issues of global migration. To the extent that there is any consensus on immigration, it is that we need to reform the current laws.
In thinking about that reform, the nation should be realistic. As most knowledgeable observers agree, the mass deportation of the millions of undocumented immigrants who are parts of our communities simply is not feasible. Consequently, some kind of path to legalization of undocumented immigrants is needed. Most informed observers further agree that reform of the legal immigration provisions of the laws is long overdue. Last but not least, many Americans believe that we need better enforcement measures. I myself am not sure that the nation needs more enforcement at this time.
In the end, the nation needs to think about how we get to the end game of true, meaningful and lasting immigration reform that works.
SCOTUSBlog will be posting a symposium, including commentary by Professors Jack Chin and Shoba Wadhia, on the implications of the decision. The ImmigrationProf blog will be posting responses as well. Stay tuned.