On Monday, April 18th, the Supreme Court will hear oral arguments in the case challenging President Obama’s 2014 executive action regarding immigration. The case, United States v. Texas, was brought by Texas and 24 other states as an effort to stop the Deferred Action for Parental Accountability (DAPA) program, which would classify four million undocumented immigrants as “lawfully present” in the United States. Last year, the Fifth Circuit Court of Appeals upheld an injunction on the program, meaning that the Obama administration can’t move forward with the directive unless the Supreme Court overturns the lower court ruling.
Aside from the lively policy questions surrounding the merits of the program, this case raises multiple constitutional questions. At oral arguments, lawyers for both sides will try to persuade justices to agree with their respective viewpoints on three main questions: first, whether the states even have standing to bring suit against the Obama administration. Second, whether the action is an unlawful infringement on congressional powers by the executive. And finally, whether President Obama’s action is a violation of the Take Care Clause from Article II, Section 3 of the Constitution.
The brief filed to the Court on behalf of the states opens by explaining why, in their view, the 25 states have standing to sue. The legal principle of standing stipulates that in order for a party’s claim to be heard in court, that party must have sustained or will sustain direct injury or harm; show that there is a sufficient causal connection between the conduct in question and the injury, and demonstrate that the court could remedy the situation. The crux of the respondents’ argument is that DAPA will impose substantial costs on states, which would stem from states providing benefits and services to those deemed “lawfully present.”
In Texas, for example, “lawfully present” individuals are eligible for subsidized driver’s licenses, unemployment insurance, and access to programs like Social Security and the Earned Income Tax Credit. The states further argue that they will have to spend more money on health care, education, and law enforcement as a result of the executive action. These costs, they argue, amount to a “direct injury”, and they explain that courts can grant them relief by blocking the action.
Lawyers defending the program before the Court say that the claim of standing by the states is illegitimate and could begin a dangerous slippery slope. They argue that all of putative injuries that the states could suffer are all “indirect and incidental,” and that if the Court grants the states standing they are entering the political thicket in a manner that violates traditional understandings of separation of powers. They point to Texas state statute that subsidizes licenses for the individuals covered under DAPA, and say that instead of asking the Court to impede the actions of the Executive branch, Texas ought to change their laws if they find the costs too burdensome.
After arguing that the states have standing before the Court, the brief filed on their behalf argues that the action is an unconstitutional overreach by the President, who they contend is asserting powers delegated exclusively to Congress. They point to recent precedent which underscored that “policies pertaining to the entry of aliens and their right to remain here are…entrusted exclusively to Congress,” and note that Congress has debated and rejected passing policies like those in DAPA. The brief acknowledges that, due to limited enforcement resources, the Executive branch has been understood to have the discretion to abandon deportation proceedings, but note that this power is limited to be used on a “case-by-case basis.” They claim that DAPA far exceeds the scope of this discretion, as it categorically “transform[s] unlawful conduct into lawful conduct.”
The opposing brief counters these claims by citing federal statute which delegates, to the Secretary of Homeland Security, the power to “establish national immigration enforcement policies and priorities” in ways that he or she deems necessary. They explain that this substantial delegation from Congress to the Executive reflects Congress’ prudent judgment that immigration policies need to respond rapidly to developing situations, and that the Executive is in the best position to determine deportation priorities. They argue that DAPA is justified under this scheme of delegation by Congress, and assert that rather than making unlawful conduct lawful, the executive order “reflects nothing more than a judgment that the aliens’ ongoing presence will be tolerated for period of time.”
Finally, the states’ brief turns to the Take Care Clause, which provides that the President “must take care that the laws be faithfully executed.” They point to precedent which determined that the clause “refutes the idea that [the President] is to be a lawmaker,” and say that it prescribes the executive action in question because of its declaration that unlawful conduct be treated as lawful. They warn that should the Court permit this action, future Presidents could cease enforcement of laws like the Voting Rights Act using the same justification employed by the administration in this case.
Lawyers for the administration contend that the Take Care argument is “meritless.” They assert that the Supreme Court has never interpreted the Clause as a basis for intervening in matters of executive discretion like this, and warn that a broad interpretation of the Clause would lead the way to judicial overreach on powers reserved to the executive. Regardless, they explain, the Executive branch is faithfully enforcing the law, as DAPA is covered under the “unusually broad discretion” given to the Executive regarding immigration.
While the immediate outcome of this case will have a real impact on the lives of millions and on the contours of the ongoing debate surrounding immigration policy, this case has the potential to have longer lasting institutional effects. It’s ruling will impact the delicate separation of powers between all three branches, which makes this one of the landmark cases of the 2015-16 Supreme Court session.
