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The fight over illegal immigrants goes to the Supreme Court

19 Apr

CALLS for comprehensive immigration reform have been circulating in the halls of Congress for decades. But lawmakers have accomplished little in the effort to reckon with America’s 11.3m undocumented residents. When, in 2013, Republicans in the House of Representatives refused to consider a bipartisan Senate bill drafted by the so-called gang of eight (an oft-heard reference in debates among the Republican presidential candidates) Barack Obama opted to take matters into his own hands. In November 2014, he issued a series of executive orders to shield nearly half of the nation’s illegal immigrants from the threat of immediate deportation. While noting at the time that under his presidency “deportations of criminals are up 80%”, Mr Obama made a distinction between illegals who pose a threat to the nation and those who live and work peacefully within America’s borders. “[W]e’re going to keep focusing enforcement resources on actual threats to our security”, he said. “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids. We’ll prioritise, just like law enforcement does every day.”

One of Mr Obama’s moves was to create Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), a programme giving people whose children are American citizens or permanent residents both temporary relief from deportation and a permit to work. Another move expanded eligibility under Deferred Action for Childhood Arrivals (DACA), a policy Mr Obama had announced two years earlier to give undocumented children arriving on America’s shores a renewable, two-year reprieve from deportation. DAPA and DACA do not fully insulate illegal immigrants from removal and do not wipe away their unlawful presence; they give some immigrants whose only crime was to enter the country illegally an opportunity to apply for a respite from removal.

Before the ink on Mr Obama’s orders was dry, conservatives across the land cried foul, claiming he had exceeded his constitutional powers under Article II. And in February 2015, just as DAPA was set to begin accepting applications, a federal judge in Texas issued an injunction bringing the programme to a sudden halt. That ruling was upheld by the conservative Fifth Circuit court of appeals in November 2015, and the Supreme Court agreed to review the matter in January.

When the justices hear an expanded, 90-minute argument in United States v Texas on April 18th, they will have several matters to resolve, including whether Mr Obama violated the “Take Care Clause” of the constitution when he issued his orders. This clause requires presidents to “take care” that the laws “are faithfully executed”. So if Mr Obama defied the express will of Congress when he issued his orders, he may have acted unconstitutionally. But when it comes to immigration, the courts have traditionally given the executive branch wide latitude. In a 2012 case, Arizona v United States, Justice Kennedy wrote that “a principal feature of the removal system is the broad discretion exercised by immigration officials”. When deciding on deportation rules, “[f]ederal officials…must decide whether it makes sense to pursue removal at all”. In other words, as recently as four years ago, the Supreme Court seems to have given its stamp of approval to just what Mr Obama’s executive actions did in 2014: set priorities defining who should and who should not be returned to their home countries.

But before resolving this matter, the justices face a crucial threshold question: whether Texas and the other 25 states suing the United States even have the right to do so. In order to bring a lawsuit, a plaintiff must establish he has “standing”, a requirement showing he has suffered an injury by the opposing party. Mere political disagreement with a move by the federal government does not constitute an injury and cannot establish standing. So Texas and fellow plaintiffs say they are put out by DAPA and DACA because their states foot the bill for subsidised driver’s licences for immigrants shielded from deportation. That explanation satisfied the district-court judge and two of the three judges on the appeals court. But Carolyn King, the dissenting judge in the Fifth Circuit’s 2-1 ruling, disagreed that these payments are enough to show that Texas and the other states suffer real injury from Mr Obama’s executive actions. “The majority’s breathtaking expansion of state standing would inject the courts into far more federal-state disputes”, she wrote. And quoting a document written by John Roberts a dozen years before he became chief justice, Judge King noted that the standing doctrine prevents the judiciary from “aggrandis[ing] itself . . . at the expense of one of the other branches”.

Some have speculated that the court’s four remaining conservatives may side with the 26 states when a decision arrives in June. A 4-to-4 tie would let the lower court decisions stand and deliver a crushing loss to Mr Obama in the last year of his presidency; it would also remove all hope of a break for millions of America’s undocumented immigrants. But if Mr Roberts votes in line with his oft-reiterated portrayal of the Supreme Court as an institution that’s above the political fray—and if Justice Anthony Kennedy remembers his rationale in Arizona v US—US v Texas could be an easier case for the outgoing president than many think. We should have a better sense of what is on the justices’ minds after the oral argument tomorrow.