Is It Too Late for Obama On Immigration Reform?

November 11, 2015
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by Katie Worth Tow Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowships

President Barack Obama’s pledge to overhaul the nation’s immigration policies now hinges on how fast, if at all, the Supreme Court considers the main legal challenge to those reforms.

On Monday, a federal appeals court ruled that the administration could not move forward with a plan to provide as many as five million undocumented immigrants with work permits and protection from deportation.

The outcome surprised no one. However, proponents of the reforms were hoping the decision would arrive in time for the administration to petition the Supreme Court to decide the case as early as this spring. If the appeals court’s ruling is overturned, that would allow the reforms to be implemented before the president leaves office in Jan. 2017. Otherwise, the policies face an uncertain future in the hands of the next president.

Reform supporters say they are optimistic, but legal experts say that the timeline may now be too tight for the Supreme Court to rule on the case during its current term — unless the justices take the unusual step of expediting its review.

The administration has been battling court challenges — and the clock — since the president announced the policy, known as Deferred Action for Parents of Americans (DAPA), as well as a separate plan to expand protections for immigrants brought to the United States as children. Obama unveiled the initiatives after comprehensive immigration reform died on Capitol Hill last year, saying  he would no longer wait for Congress to end its deadlock over reform.

The two executive actions were immediately challenged by the attorney general of Texas in a lawsuit that was joined by 25 other states who said they would be financially harmed by the initiatives. The states argued that the administration overstepped its authority with the initiatives, wading into policy-making territory normally reserved for Congress.

In February, a federal judge in Texas ruled that the administration must halt the reforms. In May, a three-member panel of the United States Court of Appeals for the Fifth Circuit upheld that injunction in a preliminary decision. On Monday, its final ruling came out — a 2-1 decision against the Obama administration.

Despite the defeat, advocates for reform “breathed a huge sigh of relief” when it came down, said Melissa Crow, legal director for the American Immigration Council, which filed an amicus brief in favor of the administration’s actions. Supporters had been anticipating the decision against their case for months — the only question was whether it would arrive in time for an appeal to be made to the Supreme Court this year.

“We knew we had to have the Fifth Circuit decision before we could move forward. The starting gun has now been fired and we are no longer in limbo, which is great,” Crow said.

After the decision came out Monday, the Department of Justice announced that it would appeal the case “as quickly as possible.” Crow said the department has been preparing the appeal for months, and that it could come within days.

The 26 states involved in the suit will then have 30 days to respond to the appeal — but they can also seek an extension of another 30 days, said Josh Blackman, a law professor at South Texas College of Law, who filed an amicus brief supporting the states. The Justice Department is sure to oppose the extension, but Blackman said its chances of winning that fight are slim: “I can’t find any instance where the court denied a 30-day extension. Generally speaking, they are automatic.”

Once the states submit their response, the Supreme Court usually gives itself about two weeks to review a case, and then the justices convene to decide whether to hear it, said Blackman.

In past years, cases considered by the court before Jan. 15 are typically heard during its current term, which ends in June; cases that come later are heard in the next term, which begins in October — too late for the Obama administration to complete the months-long work of implementing the policy.

Blackman did the math: If the Justice Department appeals by Nov. 20, the states would have at least until Dec. 20 to file a brief. If they are granted the normal 30-day extension, that takes them to the end of January. That would push the appeal past the crucial mid-January inflection point.

Even then, though, the Supreme Court could still choose to hear the case this term, if the justices consider it urgent enough. But they may not be motivated to hurry the question, according to Blackman.

At issue is a “very serious separation of powers issue,” he noted, one that would require the court to rule on how far a president’s power for executive action can go — an area of law that he said has been grey for decades. The court has considered such issues before, Blackman said, but its general policy has tended against making bigger decisions than it strictly has to.

“I don’t think they’ll be rushed to resolve such a serious issue,” said Blackman, especially since “this case may go away entirely with the next presidential election if a Republican becomes president.”

But Crow noted that the court wouldn’t necessarily have to resolve the executive action question. Instead, it could determine that Texas lacks standing to challenge the case.

Texas has argued that it has standing because it would have to spend more to issue driver’s licenses and provide other state services to undocumented immigrants protected by the president’s proposals. But the federal government has argued that the state is likely to benefit from increased tax revenue.

In its ruling this week, the majority for the Fifth Circuit said Texas had standing, noting that the state would lose a minimum of $130.89 for each driver’s license issued to a DAPA beneficiary.

In her 53-page dissent, Judge Carolyn King questioned that argument, and took issue with the speed at which the court’s ruling was issued.

“I have a firm and definite conviction that a mistake has been made,” wrote King. “That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay.”

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