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Obama Administration Asks Supreme Court to Save Immigration Plan

20 Nov

WASHINGTON — The Obama administration on Friday asked the Supreme Court to rescue the president’s overhaul of the nation’s immigration system.

Solicitor General Donald B. Verrilli Jr. urged the court to take prompt action to reverse an “unprecedented and momentous” appeals court ruling last week that blocked President Obama’s plan to let more than four million undocumented immigrants legally live and work in the United States.

“If left undisturbed,” Mr. Verrilli wrote, “that ruling will allow states to frustrate the federal government’s enforcement of the nation’s immigration laws.”

The case, United States v. Texas, concerns a November 2014 executive action by Mr. Obama that allowed parents of citizens or lawful permanent residents to apply for a program sparing them from deportation and allowing them to work.

“Without work authorization,” Mr. Verrilli wrote of the people eligible for the program, “they are more likely to work for employers who will hire them illegally, often at below-market wages, thereby hurting American workers and giving unscrupulous employers an unfair advantage.”

The first anniversary of Mr. Obama’s announcement of the executive actions was Friday. To mark it, immigrant and Latino groups vented their frustration with the appeals court’s ruling in marches and rallies at more than two dozen places around the country, including Phoenix; Raleigh, N.C.; and Miami.

One group protested at the offices of the House speaker, Paul D. Ryan, in Racine, Wis.

Almost immediately after Mr. Obama announced his executive action last November, Texas and 25 other states filed a lawsuit seeking to stop it. In February, Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., entered a preliminary injunction shutting down the program. The government appealed, and on Nov. 9 a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, affirmed the injunction.

Judge Jerry E. Smith, writing for the majority, said the states had standing to challenge the program, citing a 2007 Supreme Court decision that said Massachusetts and other states were entitled to sue the Environmental Protection Agency over its refusal to regulate motor vehicle emissions contributing to climate change.

Judge Smith said Texas would suffer a similarly direct and concrete injury in having to spend millions to provide driver’s licenses to immigrants under the federal program.

Mr. Verrilli told the justices that Texas’ injury, such as it was, was self-inflicted, a product of its own decision to offer driver’s licenses to people lawfully in the United States. Decisions about driver’s licenses and related fees are generally up to individual states.

He added that the appeals court’s standing theory would allow states to sue over all sorts of federal policy judgments.

“The consequences of the majority’s theory are particularly acute in a case, like this one,” he wrote, “where a state seeks to leverage its own policy choices to insert itself — and the federal courts — into discretionary immigration policy decisions that Congress and the Constitution have committed exclusively to the national government.”

Officials in Texas on Friday said they were confident that their winning streak in the courts would continue. “The president said himself more than 20 times that he didn’t have the authority to unilaterally rewrite immigration law,” said Cynthia Meyer, a spokeswoman for Attorney General Ken Paxton.

Judge Hanen grounded his injunction on the Obama administration’s failure to give notice and seek public comments on its new program. He found that notice and comment were required because the program was categorical notwithstanding the administration’s assertion that it required case-by-case determinations.

The appeals court affirmed that ruling and added a broader one. The program, it said, also exceeded Mr. Obama’s statutory authorization.

In dissent, Judge Carolyn Dineen King said the majority’s decision to reach and rule on that issue was at odds with “prudence and judicial economy.”

The administration told the justices that the injunction has had a “far-reaching and irreparable humanitarian impact.”

“It bars,” Mr. Verrilli wrote, “approximately four million parents — who have lived in this country for years, would pass a background check, are not priorities for removal, and have a son or daughter who is a U.S. citizen or lawful permanent resident — from requesting deferred action under” the program “and receiving authorization to work lawfully.”