SCOTUS Is the Last Chance for Obama’s Immigration Plans

The White House is hoping for a major Supreme Court ruling on immigration just months before the 2016 elections.

AP Photo/Carolyn Kaster
Nov. 11, 2015, 5 a.m.

The Su­preme Court will prob­ably have the fi­nal say over wheth­er Pres­id­ent Obama’s ex­ec­ut­ive ac­tions on im­mig­ra­tion ever see the light of day—and its de­cision could upend one of the coun­try’s most po­lar­iz­ing polit­ic­al de­bates, just months be­fore the pres­id­en­tial elec­tion.

The Justice De­part­ment an­nounced Tues­day that it would ask the Su­preme Court to settle a dis­pute over Obama’s im­mig­ra­tion pro­grams, set­ting the stage for just the sort of elec­tion-year drama the justices of­ten say they’d prefer to avoid.

Much like the Court’s 2012 case on Obama­care, the im­mig­ra­tion chal­lenge could put the justices in a sens­it­ive po­s­i­tion—de­cid­ing the fu­ture of a deeply po­lar­iz­ing policy just as the coun­try’s par­tis­an fevers are at their highest, with real con­sequences for mil­lions of people in the bal­ance.

The Court doesn’t have to ac­cept the im­mig­ra­tion case, but many leg­al ex­perts ex­pect that it will. It also wouldn’t have to make a de­cision be­fore the elec­tion. But a quick turn­around at the high court that may be the only hope for sup­port­ers of Obama’s ex­ec­ut­ive ac­tions.

“Ba­sic­ally, this is a policy dis­pute mas­quer­ad­ing as a law­suit,” said Dav­id Leo­pold, a former pres­id­ent of the Amer­ic­an Im­mig­ra­tion Law­yers As­so­ci­ation who rep­res­ents im­mig­rants and sup­ports Obama’s ex­ec­ut­ive ac­tions.

The case on its way to the Su­preme Court is part of a chal­lenge to the De­ferred Ac­tion for Par­ents of Amer­ic­ans and Law­ful Per­man­ent Res­id­ents pro­gram, which would al­low roughly 4.3 mil­lion un­doc­u­mented im­mig­rants to re­main in the U.S. leg­ally.

Re­pub­lic­ans have railed against DAPA as a pres­id­en­tial power grab, and its im­ple­ment­a­tion has been blocked in the courts. On Monday, the 5th Cir­cuit Court of Ap­peals up­held the in­junc­tion that has kept DAPA on ice.

The lower court has not ruled on DAPA’s leg­al mer­its; both sides agreed to put that de­bate aside while fo­cus­ing on wheth­er the pro­gram could take ef­fect in the mean­time, Leo­pold said.

DAPA’s sup­port­ers largely ex­pec­ted the 5th Cir­cuit to up­hold the in­junc­tion, but had grown rest­less over the past few months about how long the Court was tak­ing to is­sue its de­cision; the longer the 5th Cir­cuit took, the harder it would be to se­cure a Su­preme Court rul­ing be­fore Obama leaves of­fice.

And ad­voc­ates be­lieve the polit­ics of a pre-elec­tion rul­ing, whatever it says, will work in their fa­vor. A rul­ing for the ad­min­is­tra­tion would al­low Obama to be­gin im­ple­ment­ing DAPA and could make it harder for a Re­pub­lic­an suc­cessor to cut off the pro­gram, Leo­pold said, while a rul­ing against the ad­min­is­tra­tion could help re­in­vig­or­ate the push for a com­pre­hens­ive im­mig­ra­tion bill.

“For the Re­pub­lic­ans, it’s ter­rible. … I don’t see how it helps them either way,” Leo­pold said.

On the oth­er hand, a Su­preme Court rul­ing up­hold­ing the DAPA in­junc­tion would largely vin­dic­ate Re­pub­lic­ans’ claims that the pro­gram was an over­reach by Pres­id­ent Obama. And Hil­lary Clin­ton has said she would reach even fur­ther.

The 5th Cir­cuit up­held the DAPA in­junc­tion Monday partly be­cause it de­term­ined that the policy’s chal­lengers had a good chance of suc­ceed­ing on the mer­its. The states, led by Texas, had shown that DAPA would hurt them, the court ruled, and were likely to per­suade the courts that DAPA’s policy changes fall out­side the ex­ec­ut­ive branch’s au­thor­ity.

Fed­er­al law “flatly does not per­mit the re­clas­si­fic­a­tion of mil­lions of il­leg­al ali­ens as law­fully present and thereby make them newly eli­gible for a host of fed­er­al and state be­ne­fits, in­clud­ing work au­thor­iz­a­tion,” the 5th Cir­cuit said.

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