By Laura D. Francis

The U.S. Supreme Court will decide the legality of President Barack Obama’s deferred action programs, the hallmark of his wide-ranging 2014 executive action on immigration.

The timing of the justices’ Jan. 19 announcement means there is still time to hear and decide the case during the court’s current term, which ends in June. A decision in the Obama administration’s favor would allow U.S. Citizenship and Immigration Services to get the programs up and running before the end of Obama’s presidency.

The justices already hinted that they were amenable to deciding the case on an expedited basis when they gave Texas and the 25 other states suing the administration only eight extra days to respond to the petition for review, rather than the requested 30 (231 DLR A-4, 12/2/15).

Sarah Pierce, an attorney with the Migration Policy Institute’s U.S. Immigration Policy Program, told Bloomberg BNA Jan. 19 that it is now “significantly more likely” that the case will be heard this term. She said the court has space on its oral argument calendar between March 2 and April 27, and if it does hear the case during that time, a decision should be issued by the end of June.

Had the justices denied review, it would have spelled almost certain doom for the programs, as ongoing litigation likely would have outlasted Obama’s term.

‘Huge Policy’ Creates Implementation Concerns

But Pierce pointed out that “this is a huge policy” affecting millions of immigrants, and questions loom about how it will be implemented as much as whether the court will allow it to go forward. She added that whether and how the programs are implemented could impact the November presidential election.

Furthermore, she said, immigrant advocacy organizations are grappling with whether they should start ramping up for implementation by helping potentially eligible immigrants compile documentation, or whether they should wait and see what the court does.

At issue is the administration’s ability to grant temporary deferral from deportation and work authorization to broad groups of undocumented immigrants. The case concerns two programs announced in November 2014—the deferred action for parents of Americans and lawful permanent residents program and an expanded version of the deferred action for childhood arrivals program (225 DLR AA-1, 11/21/14).

The original DACA program, which launched in 2012 (116 DLR AA-1, 6/15/12), isn’t a part of the lawsuit brought by Texas and 25 other states (232 DLR A-13, 12/3/14).

The states claim, among other things, that DAPA and the expanded DACA go beyond the executive’s prosecutorial discretion authority.

DACA provides deportation deferral and work permits for two-year periods to young, undocumented immigrants who came to the country and children and who meet certain other criteria. The expanded version would broaden the category of eligible participants and grant deferrals for three years.

DAPA would provide similar benefits to the parents of U.S. citizens and lawful permanent residents.

Both the expanded DACA program and DAPA have been on hold for nearly a year since a federal judge in Texas blocked their implementation.

One of the key disputes is whether the states have enough of a stake in the federal government’s enforcement of immigration laws to bring the case in the first place. Both the U.S. District Court for the Southern District of Texas and the U.S. Court of Appeals for the Fifth Circuit held that the extra amount Texas would have to spend on driver’s licenses for program participants was sufficient.

In a related development, the justices Jan. 19 declined to take a similar challenge to the programs brought by Maricopa County, Ariz., Sheriff Joe Arpaio (see related story). Arpaio had sought Supreme Court review of a decision by the U.S. Court of Appeals for the District of Columbia Circuit that he lacked standing to bring his case (Arpaio v. Obama, 797 F.3d 11, 2015 BL 261679 (D.C. Cir. 2015)) (157 DLR AA-1, 8/14/15).

Novel Questions Addressed?

Pierce told Bloomberg BNA that the Supreme Court in the states’ challenge is likely to tackle issues that haven’t been addressed. Although there is some precedent in the area of whether the states have standing, whether a program with such a large scope can qualify as prosecutorial discretion hasn’t previously come before the court.

“A lot of people expect this to be a close case,” Pierce said, although the novelty of the issues makes it difficult to predict which way the justices will rule.

There are already signs the court will issue a thorough decision that goes beyond the lower courts’ rulings, however. The district court’s preliminary injunction order focused narrowly on whether the executive action was a rule that should have gone through notice-and-comment rulemaking under the Administrative Procedure Act (Texas v. United States, S.D. Tex., No. 1:14-cv-00254, preliminary injunction issued 2/16/15)(31 DLR AA-1, 2/17/15).

The Fifth Circuit went further by holding that DAPA and expanded DACA also go beyond the scope of the administration’s authority under the Immigration and Nationality Act (Texas v. United States, 2015 BL 372610, 5th Cir., No. 15-40238, 11/9/15) (217 DLR A-1, 11/10/15).

But the justices likely will go even further, as the order granting the administration’s certiorari petition specifically asks the parties to brief the issue of whether the programs violate the take care clause in Article II, Section 3 of the U.S. Constitution. The question concerns the states’ argument that DAPA and expanded DACA amount to a refusal to implement immigration law, in violation of the executive’s constitutional duty to take care that the laws are faithfully executed.

Polsinelli P.C. senior immigration attorney Jeffrey S. Bell Jan. 19 opined that the court “clearly seems to be interested in the opportunity to define the Executive Branch’s limits under the Take Care Clause.” The meaning of the clause has “seldom been at issue” before the justices, he said in a statement.

Immigrant Advocates Confident in Win

Immigrant advocates cheered the Supreme Court’s action Jan. 19. During a press call, National Immigration Law Center Executive Director Marielena Hincapié said she is “delighted” at the announcement, which puts the country “one step closer to achieving a positive decision in June.”

Implementation of the programs will be “nothing short of life-changing,” especially for the U.S. citizen children of undocumented immigrants, Hincapié said. But a decision in favor of the states “could have enormous consequences” beyond immigration to all areas where state-level politicians disagree with the president’s actions, she said.

“This case is, at bottom, a political dispute,” Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, added during the call. Conservatives are trying to achieve through the courts what they couldn’t through the political process, she said.

Wydra also suggested that the Supreme Court could toss the case solely on the ground that the states’ driver’s license expenses aren’t enough to support standing. The administration and the dissent in the Fifth Circuit argued that allowing standing on that basis could open up a whole host of lawsuits by states that disagree with federal policy, she said.

Even if the court goes beyond the standing issue, Wydra said, she’s confident that the law is on the administration’s side.

Constitutional Principles at Issue

House Judiciary Committee Chairman Bob Goodlatte (R-Va.), who has been an open critic of the deferred action programs, said Jan. 19 that he is hopeful that the Supreme Court will find them illegal.

“Such lawlessness must be stopped so that we protect the Constitution and the intent of the Founding Fathers that the legislative branch, which reflects the will of and is accountable to the American people, makes the laws, not the President,” he said in a statement.

Dan Stein, president of the Federation for American Immigration Reform, said, “FAIR believes that the president’s actions clearly overstep his authority under the Constitution and we believe that the Supreme Court will rule in favor of the states, which will be directly harmed if his executive actions on immigration are implemented.”

“What is at stake is more than just the president’s efforts to allow millions of illegal immigrants to live and work in the United States,” according to Stein, whose organization advocates for lower immigration levels. “Rather, this case could determine whether the system of checks and balances that our Founding Fathers deliberately built into our Constitution will remain intact, or whether the executive branch will be able to act at will to ignore laws passed by Congress and substitute its own policies in their place.”

Administration: ‘Unprecedented Nationwide Injunction.’

In its petition for Supreme Court review, the administration gave a host of legal and practical reasons why the court should take up the case quickly.

“A divided court of appeals has upheld an unprecedented nationwide injunction against implementing a federal immigration enforcement policy of great national importance, and has done so in violation of established limits on the judicial power,” the administration said. Leaving the Fifth Circuit’s ruling in place “will allow States to frustrate the federal government’s enforcement of the Nation’s immigration laws.”

The decision amounts to a “vast expansion of the judicial power that would entangle federal courts in policy disputes that are properly resolved through the political process,” the administration added.

Keeping the Fifth Circuit’s decision in place would also allow millions of undocumented immigrants to continue working off the books, dragging down U.S. workers’ wages and giving unscrupulous employers an unfair advantage in the marketplace, the administration said.

The Obama administration also said the decision stripped the Department of Homeland Security of its long-time authority to grant deferred action and incorrectly found that DAPA and expanded DACA require notice-and-comment rulemaking under the APA.

States: ‘Nothing Stopping This Executive.’

Arguing against Supreme Court review, the states said the administration’s own arguments belie its request for a grant of certiorari: There are no contrary federal appeals court decisions and it isn’t likely that another court will take up the issues in the present case. The appeal also only challenges a preliminary injunction rather than a decision after a trial on the merits, the states said.

Furthermore, the administration’s arguments that the deferred action programs are significant is an argument as to why, at the very least, they warrant notice-and-comment rulemaking, the states argued.

“This particular assertion of unilateral Executive power occurred in the immigration context,” the states said in their brief. “But if petitioners’ arguments are accepted, there is nothing stopping this Executive or future Executives from invoking resource constraints to declare conduct unlawful in other areas—such as environmental, tax, criminal, campaign-finance, and civil-rights laws.”

In reply, the administration said the posture of the case is insignificant, as the Supreme Court issued a broad decision on the constitutionality of state immigration laws in Arizona v. United States, 132 S. Ct. 2492, 2012 BL 157302, 115 FEP Cases 353 (U.S. 2012), on appeal from a preliminary injunction.

And the states’ “principal argument” against review is that they are legally correct—a point the court should decide after taking the case, the administration said.

U.S. Solicitor General Donald B. Verrilli Jr. is counsel of record for the administration. Scott A. Keller, solicitor general for the state of Texas, is counsel of record for the states.