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Fate of Obama’s immigration actions goes to Supreme Court

January 19, 2016 at 6:45 PM EDT
The Supreme Court will consider whether President Obama overstepped his authority by deferring deportation and securing work rights for 4 million undocumented immigrants, an action opposed by 26 states. Marcia Coyle of The National Law Journal offers background, while Judy Woodruff gets views from the Immigration Law Center’s Marielena Hincapie and Josh Blackman of the South Texas College of Law.

JUDY WOODRUFF: It’s official: The Supreme Court will hear a case this term that could decide the fate of one of President Obama’s major immigration moves. It would defer deportation for more than four million undocumented immigrants and permit them to work legally in the U.S.

Lower courts have sided with the 26 states that sued the federal government over the program, and those courts have put the program on ice for now.

But the White House said today the administration is confident the high court will rule in its favor.

JOSH EARNEST, White House Press Secretary: The kinds of executive actions that the president took a little over a year ago now to try to bring some much-needed reforms and greater accountability to our broken immigration system were clearly consistent with the precedent that was established by other presidents, and clearly within the confines of his authority as president of the United States.

JUDY WOODRUFF: But that is the issue that 26 states dispute. Texas is one of those states, and its attorney general, Ken Paxton, said today in a statement — quote — “There are limits to the president’s authority, and those limits enacted by Congress were exceeded when the president unilaterally sought to grant lawful presence to more than four million unauthorized aliens who are in this country unlawfully.”

For more on the case, we turn to our regular, Marcia Coyle of “The National Law Journal.”

And, Marcia, welcome.

MARCIA COYLE, The National Law Journal: Judy, thank you.

JUDY WOODRUFF: So, some background first. This order the president made has been challenged almost from the very beginning, hasn’t it?


The executive action came in November of 2014. Less than a month later, 26 Republican-led states challenged it in federal district court.

JUDY WOODRUFF: And what was the basis?

MARCIA COYLE: The states are making a number of claims here. One, they claim that the action violates the take care clause of the federal Constitution. That’s in Article 2, Section 3 of the Constitution. And it says the president must enforce — I’m sorry — must faithfully enforce the laws.

They also claim that his action is arbitrary and capricious, his action violates the notice and public comment requirement of the Administrative Procedure Act. That’s a law that governs how agencies go about making rules and regulations.

JUDY WOODRUFF: Well, we know the justices don’t ever, I guess, give a reason for taking up a case, but why is it thought that they’re doing this?

MARCIA COYLE: Well, I think it was understood that they probably would take this case. You have a federal court, a federal appellate court blocking a major federal government program.

The top lawyer for the administration in the Supreme Court, the solicitor general of the United States, went to the Supreme Court after the injunction was issued and said, please take this case and resolve these legal questions.

And I think it was a given that the court would step into it.

JUDY WOODRUFF: So, you mentioned that this is — they’re looking at the take care clause, which I read today hasn’t — is something the court hasn’t done in 70 years. So, this has historic consequences, presumably.

MARCIA COYLE: It has potentially major consequences.

The take care clause really will go to the relationship between the executive branch and Congress. So, what the court says, if it deals with it, and it doesn’t have to — even though it has asked the parties to address it, it could rule narrowly or address the take care clause.

But whatever the court says could affect all kinds of executive actions that the White House would take beyond immigration. So, that’s a potentially very broad question. Also, there’s a very important threshold issue, and that is whether Texas even had the right to sue the United States.

The Obama administration claims it didn’t have the kind of concrete injury this — that is required for standing to sue. This action, the government says, doesn’t require Texas to do anything or not do anything. However, the lower court said Texas would have the cost of issuing driver’s license, which is under Texas law, and that was the injury to Texas.

JUDY WOODRUFF: Marcia, it’s also clear from the reading of this that the court added the threshold of constitutionality to what they’re looking at. What’s the significance of that?

MARCIA COYLE: The take care clause question was in the lawsuit to begin with. Texas had raised that.

It may be that the justices want to get all of the issues out on the table when they sit down to finally make a decision. It may be that certain justices were interested in the take care clause issue. Or it may be that certain justices had read a “Harvard Law Journal” article by a former clerk and current presidential candidate, guess who, who wrote all about the take care clause and talked in that article about the egregious overreaching by the Obama administration on immigration and other issues.

JUDY WOODRUFF: And you were telling me this is Senator Ted Cruz…

MARCIA COYLE: That’s correct.

JUDY WOODRUFF: … who has, of course, a legal background.

MARCIA COYLE: I do think it’s the least — that’s the least likely reason they took the case, but since this is becoming a very political kind of case, he did write about it.

JUDY WOODRUFF: And presumably not a coincidence.

But on the timing of it, it is an election year.


JUDY WOODRUFF: What about the timetable for the court deciding?

MARCIA COYLE: The court will probably hear the arguments in April, and there would probably be a decision by the end of June. That’s the regular schedule at the court.

If there is a decision in June, as you well know and we all know, that’s in the middle of the election cycle, and immigration is already a huge, contentious issue. The court itself now becomes a player in that very contentious debate.

JUDY WOODRUFF: Marcia Coyle, we thank you.

MARCIA COYLE: My pleasure, Judy.

JUDY WOODRUFF: And now, for two opposing perspectives on this case, Marielena is the executive director of the National Immigration Law Center. And Josh Blackman is associate professor of law at the South Texas College of Law. Both of them have followed this case closely as it moved up through the federal courts.

And we welcome both of you back to the program.

Marielena Hincapie, let me start with you. Is this something you welcome or you worry about, that the court is finally taking this up?

MARIELENA HINCAPIE, Executive Director, National Immigration Law Center: Thanks, Judy.

We definitely welcome this decision. We’re very delighted that the court decided to hear this case, because it has the potential life-changing impact on over four million parents of U.S. citizen children. And, most importantly, it really has the ability to bring much-needed stability to five million U.S. citizen children whose parents would benefit from these programs. So, definitely, this is a welcome day.

JUDY WOODRUFF: Josh Blackman, posing the same question to you, is this something you look forward to or are you concerned?

JOSH BLACKMAN, South Texas College of Law: Well, the separation of power dispute between the president and Congress is fairly rare.

But I think it’s quite significant, as my good friend Marcia mentioned a moment ago, that the court chose to address the take care clause issue. She mentioned this hasn’t been reversed in 70 years. I actually went back to look at the briefs for this — the seizure case, the Youngstown case from 1954. It barely mentioned the take care clause there either.

So, by my cursory research, this may be first time the court has ever asked for briefings on the take care clause. And to make the point a little bit more clearly, they didn’t add this case — this question just to tie up loose ends. Even if the court rules in favor of the Obama administration on administrative grounds, that still leaves the constitutional issue lingering.

So they really need to resolve this question once and for all, so that Texas doesn’t just sue right back in the same court once the president goes through the proper administrative channels.

JUDY WOODRUFF: Marielena Hincapie, is — how strong is the argument from the administration that the president was acting within the constitutional — his constitutional role when he issued this order saying that these four million-plus immigrants may not be deported?

MARIELENA HINCAPIE: Yes, Judy, the legal precedent is pretty well-established, and the majority of legal scholars agree with the administration, as do we at the National Immigration Law Center.

And, as Marcia mentioned, there’s historical precedent as well. Both Republican and Democratic administrations, every single administration since President Eisenhower, has exercised very similar executive actions.

So, I think the administration knew what it was doing. It took its time. And it acted both on historical and strong solid legal ground.

JUDY WOODRUFF: In that case, Josh Blackman, then what is it that the states — what is the strongest argument that these 26 states have in saying the president overstepped his bounds?

JOSH BLACKMAN: Well, with respect to my good friend Marielena, we have done this a few times before, I don’t think the precedents going back to Eisenhower are that clear.

To give you an example, deferred action has often been used as a bring to get a person from one status to another. So, for example, if you were a student at Tulane University in New Orleans, Hurricane Katrina hits, you’re a foreign student, you just lost your status.

President Bush used deferred action to bridge you from when you had a status and you lost it, and said, if you get another degree and you enroll at another university in a few months, you can keep your status.

Deferred action has been used on a case-by-case basis. What’s frankly unprecedented about the president’s action is the size and scale that has been done. On a scale of five million people, you have a standard that’s very, very vague that basically everyone who applies will be granted for it.

There is no precedent to justify this scope of executive power and granting deferred access to so many aliens.

JUDY WOODRUFF: Marielena Hincapie, you’re shaking your head.

MARIELENA HINCAPIE: Yes, absolutely not.

I mean, Josh — Josh knows this. Deferred action is adjudicated on a case-by-case basis. There is nothing that the administration is saying that there is absolutely categorical eligibility and approval for. Individuals will have to come forward voluntarily. A parent of a U.S. citizen will need to make that risk and benefit — cost-benefit analysis of coming forward to the federal government, paying a fine, going through a national security and criminal background check, and then providing the evidence that they meet the criteria.

An individual agent from the U.S. Citizenship and — Citizenship and Immigration Services will determine whether that individual is eligible or not or deny them. So, this isn’t — this is exactly what the president did in 2012 with the deferred action for childhood arrivals, for example. Interestingly, Texas and 25 states didn’t sue the president over DACA.

JUDY WOODRUFF: What about that, Josh Blackman?

JOSH BLACKMAN: So, the grant rate for the 2012 program was over 97 percent.

The government has not been able to find a single instance where a person was denied for discretionary reasons, not one (INAUDIBLE) two years. They could not find a single instance where a person was denied DACA, the 2012 program, for discretionary reasons.

If the government wants to hedge its case on how discretionary DACA was, I think they’re going to lose. The broader issue is that this is not really a case about Texas vs. the United States. As Marcia mentioned, this is a case about Congress vs. the United States. The president has decided he didn’t like the law Congress gave him. Congress didn’t vote for the law he wanted, so he decided to achieve as much as possible that he could.

And one point I would like to stress is, even if this decision is rendered in July of 2016, President Obama cannot possibly execute this on his watch. This will fall to the next president to actually implement. So, in many respects, it doesn’t matter what the court does here, right?

If the court rules for Texas, then the issue is over. If the court rules for the president, then the next presidential election will continue it, because a Republican president will not continue this policy, and a Democratic president will, and maybe achieve legislative reform.

So, no matter what happens in July, this will be a matter for the American people to vote on.

JUDY WOODRUFF: Marielena Hincapie, do you agree that either way it’s something that is going to be up to the public?


I think I disagree with Josh in terms of the implementation of it. The administration was ready to start implementing the expansion of DACA the day after Judge Hanen issued his decision and it was blocked, so they will be able to start implementing that very quickly.

And then with DACA, it will probably take, I don’t know, weeks, maybe a couple of months. But I do think that this is going to be part of the thinking of U.S. citizens who have immigrant family members. U.S. citizens will go to the ballot and they will vote for their family’s interest. They will vote for a president that will continue President Obama’s executive actions, especially if they are given the green light by the Supreme Court.

JUDY WOODRUFF: Watching it closely. We thank both of you, Josh Blackman, Marielena Hincapie. Thank you.