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Constitution Check: Is the new immigration policy at risk constitutionally?

November 12, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the arguments behind a challenge to President Obama’s immigration policies that seems headed toward the Supreme Court.




“The court’s decision is a vindication of the rule of law and the Constitution.  The President’s job is to enforce the immigration laws, not rewrite them.  President Obama should abandon his lawless executive amnesty program and start enforcing the law today.”


– A statement by Texas Governor Greg Abbott on November 10, after a federal appeals court the day before had blocked enforcement of the Obama Administration’s year-old plan to delay the deportation of more than 4 million undocumented immigrants.  The Administration will now ask the Supreme Court to review its policy.


“Throughout this process, the Obama Administration has aggressively disregarded the constitutional limits on executive power, and Texas, leading a charge of 26 states, has secured an important victory to put a halt to the president’s lawlessness.”


 – Excerpt from a statement by Texas Attorney General Ken Paxton on November 9, commenting on the appeals court’s ruling issued that day.




It has been a long tradition in the Supreme Court and the lower federal courts that they will not decide a constitutional question unless that is the only way to resolve a case.  They will try first to rely on federal statutes and prior precedents interpreting those statutes.  This reticence reflects a deep respect for stability in the meaning of the Constitution.


When 26 states, led by Texas, mounted a challenge to President Obama’s new policy of deferring deportation for as many as 4.3 million undocumented immigrants, they included a broad constitutional attack along with challenges based on federal laws.  Under the challenged program, parents of children who were U.S. citizens or had become legal permanent residents of the U.S. will be allowed to remain in the country for a time, get work permits and qualify for other public benefits.  Deportation policy will focus, instead, on aliens who had criminal records or posed risks to security.


The challenging states argued that President Obama had violated the Constitution’s “Take Care Clause” – the provision in Article II, Section 3 that compels the President “to take care that the laws be faithfully executed.” According to the claim in Texas v. United States, Obama had not done his constitutional duty because he modified the immigration laws passed by Congress that control immigration and deportation.


In addition to that claim, the states contended that the President had not given the public formal notice that he was changing immigration policy, and had not provided an opportunity to comment on it.   That is one claim under the federal Administration Procedure Act (APA).


They also made a second complaint under the APA: that the President had used powers that Congress had not given him, so he had no authority to set up his own massive program of delayed deportation.


All three of the claims – the Take Care challenge and the two protests under the APA – have yet to go to a full trial in federal court.  However, last February, a federal trial judge in Brownsville, Texas – Andrew S. Hanen – issued a temporary order to the Administration barring it from enforcing the new policy until there could be a trial.


The judge relied only on the first APA claim – that the states had not been given notice and a chance to comment on the new initiative.  He specifically avoided ruling on the Take Care claim under Article II.


The administration took the case on to the U.S. Court of Appeals for the Fifth Circuit, arguing that the states had no right even to sue because they could not show they were injured by the policy (something that anyone suing in federal court must demonstrate).  The government lawyers also contested the APA claims, arguing that the new policy is not even subject to review by the courts under that law.


On Monday, the Circuit Court continued in effect Judge Hanen’s order blocking the new policy pending the trial.  It went a bit further than Judge Hanen, finding that the challengers were likely to win at trial on both of their APA claims.   It, too, avoided deciding the constitutional protest.


When the case moves on to the Supreme Court, as the administration on Tuesday promised, it will focus on its claim that the states did not have a right to sue (an argument rejected by both lower courts). And it will contest the rulings on the two APA arguments.  Because the lower courts took no action on the Take Care claim, that almost certainly will not figure in the case before the Justices.  They, too, share the view that they should not reach out to decide such constitutional issues when a case can be decided on less august legal grounds.


At the same time, the public should not expect officials in the challenging states to change their public rhetoric, accusing the President of violating his constitutional duty; they genuinely believe that, even though they have not yet established that as a legal conclusion.


As to the Supreme Court appeal by the government, there is no guarantee that the Justices will accept the case for review.  For one thing, it is still in the pre-trial stage, and they may want to wait until after the trial has been concluded, to see if anything remains. For another reason, there is no split in the lower courts on the question and that lack of conflict often leads the Justices to take a pass.


But the Justices do have the option of stepping in, even at this stage, and given the importance that the government’s lawyers will seek to show that the case has, it seems quite likely that the court will step in.


The one real risk for the Obama administration, however, is that time is actually very short for the court to move the case along and reach a decision during the current term, which will run through next June.  So the government probably will move with dispatch in filing its appeal, and seems likely to ask that the court put the case on a fast-track.


Of course, whether or not the court does get involved, immigration policy is sure to be a major issue in next year’s presidential campaign and election.  And if the court does rule, the decision will land in the midst of that campaign, further intensifying that as a political issue.


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