Obama, Immigration & the Supreme Court: Executive, or Judicial, Overreach?

On Tuesday we learned the Supreme Court is going to hear the Texas case that put a halt to President Obama’s 2014 executive action on immigration.  We’re likely to hear arguments in the Spring and a decision in the Summer.  Given the fact that it’s an election year, expect GOP nominees to continue to talk about the steps taken by the Department of Homeland Security to prioritize deportations as an overreach of executive power.

In the case, United States v. Texas, Texas and other states asked a federal district court to halt a program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), announced by the Secretary of Homeland Security in November 2014, that prioritized the removal of removing serious criminals, terrorists, recently arrived aliens and aliens who have abused the immigration system, and stated that DHS would use its discretion to defer action on removing parents of US citizens or permanent residents who had resided in the US for the last five years. Texas complained that because these parents would have “deferred action” status, they would be eligible for Texas drivers licenses, which Texas subsidizes. The argument goes, because there would be more licenses issued, it would cost Texas more money.  And that’s the “harm” that Texas insists gives it standing to bring the case.  Even though Texas could just pass a law ending drivers license subsidies for people with “deferred action” status.

 Ultimately, this case is about is power and partisanship.  The big questions raised are:

  • Can or should a single federal court be able to cripple a nationwide federal immigration program, as it has in this case?  Is this not judicial overreach?
  • Do the states have standing to sue over an immigration program, where the “injury” that their standing is based on can be rectified by a simple law change at the state level?
  • Does the President have the power to direct the Secretary of Homeland Security to prioritize certain immigration policies and allocate resources accordingly?
  • Should there have been a period of review and comment before the Secretary acted?
Clearly, the President was frustrated with Congress’ inability to pass bipartisan immigration reform. So he acted. The big questions here will be whether the Supreme Court will allow the program to go forward, or whether it will restrict this executive action, or future executive actions, as an over-reach of presidential power.

 

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