Just a week after the Fifth Circuit Court of Appeals handed the Obama Administration another defeat in the legal battle over the immigration relief plan that the President announced one year ago, a plan that has yet to actually be put into effect due to the injunctions put in place by the District Court Judge hearing the challenge to the plan and confirmed on appeal. Not surprisingly, the Administration has decided to ask the Supreme Court to review the ruling:
WASHINGTON — The Obama administration on Friday asked the Supreme Court to rescue the president’s overhaul of the nation’s immigration system.
Solicitor General Donald B. Verrilli Jr. urged the court to take prompt action to reverse an “unprecedented and momentous” appeals court ruling last week that blocked President Obama’s plan to let more than four million undocumented immigrants legally live and work in the United States.
“If left undisturbed,” Mr. Verrilli wrote, “that ruling will allow states to frustrate the federal government’s enforcement of the nation’s immigration laws.”
The case, United States v. Texas, concerns a November 2014 executive order by Mr. Obama that allowed parents of citizens or lawful permanent residents to apply for a program sparing them from deportation and allowing them to work.
“Without work authorization,” Mr. Verrilli wrote of the people eligible for the program, “they are more likely to work for employers who will hire them illegally, often at below-market wages, thereby hurting American workers and giving unscrupulous employers an unfair advantage.”
Almost immediately after Mr. Obama announced his executive action, Texas and 25 other states filed a lawsuit seeking to stop it. In February, Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., entered a preliminary injunction shutting down the program.
The government appealed, and on Nov. 9 a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans,affirmed the injunction.
Judge Jerry E. Smith, writing for the majority, said the states had standing to challenge the program, citing a 2007 Supreme Court decision that said Massachusetts and other states were entitled to sue the Environmental Protection Agency over its refusal to regulate motor vehicle emissions contributing to climate change.
Judge Smith said Texas would suffer a similarly direct and concrete injury in having to spend millions to provide drivers licenses to immigrants under the federal program.
Mr. Verrilli told the justices that Texas’s injury, such as it was, was self-inflicted, a product of its own decision to offer driver’s licenses to people lawfully in the United States. Decisions about driver’s licenses and related fees are generally up to individual states. He added that the appeals court’s standing theory would allow states to sue over all sorts of federal policy judgments.
“The consequences of the majority’s theory are particularly acute in a case, like this one,” he wrote, “where a state seeks to leverage its own policy choices to insert itself — and the federal courts — into discretionary immigration policy decisions that Congress and the Constitution have committed exclusively to the national government.”
Judge Hanen grounded his injunction on the administration’s failure to give notice and seek public comments on its new program. He found that notice and comment were required because the program was categorical notwithstanding the administration’s assertion that it required case-by-case determinations.
The appeals court affirmed that ruling and added a broader one. The program, it said, also exceeded Mr. Obama’s statutory authorization.
In dissent, Judge Carolyn Dineen King said the majority’s decision to reach and rule on that issue was at odds with “prudence and judicial economy.”
The administration told the justices that the injunction has had a “far-reaching and irreparable humanitarian impact.”
“It bars,” Mr. Verrilli wrote, “approximately four million parents — who have lived in this country for years, would pass a background check, are not priorities for removal, and have a son or daughter who is a U.S. citizen or lawful permanent resident — from requesting deferred action under” the program “and receiving authorization to work lawfully.”
Lyle Denniston comments:
One year after President Barack Obama took historic steps to overhaul immigration policy, his lawyers on Friday appealed to the Supreme Court to uphold his plan and let it go into effect. It is currently stalled by lower court rulings finding that the president probably overstepped his powers in bypassing Congress to put off deportation for nearly five million undocumented immigrants.
The filing in United States v. Texas (docket 15-674) arrived just as Washington’s attention is focused on what the government should do about the immigration of refugees fleeing from war and terrorism in the Middle East. The only link between that controversy and the deferred-deportation policy is that the Court in deciding that case could clarify how power over who may enter the country is divided between Congress and the executive branch.
The petition opened with a challenge to the right of state governments to go to court to challenge the policy choices of the president and his aides over who and when to send out of the country when they have entered illegally. It added two other questions: was the new policy beyond the government’s authority, and did it have a duty to give the public a chance to comment on the policy before it was adopted?
The question of states’ “standing” to sue is a constitutional issue — under Article III — but the petition raised no separate question about the constitutionality of the policy. The U.S. Court of Appeals for the Fifth Circuit had ruled that the twenty-six states that sued would be able ultimately to show that the president lacked the authority to adopt the policy — a violation of the Administrative Procedure Act. The states had also raised a constitutional challenge to the policy, but the lower courts opted not to rule on it.
Because it is getting late in the Supreme Court’s current Term to begin a new case, the filing asked the Court to grant “immediate review,” because of the “broad importance” of the policy, the harm that delay could cause to “the many families affected,” and the “great and immediate significance” of implementing the details of the new approach.
Although the government did not ask the Court explicitly to put the case on an expedited schedule, it is likely that the case could be ready for the Court’s initial action — that is, the decision to grant or deny review — within a matter of weeks. Ordinarily, a case must be accepted for review by the end of January in order to be briefed, argued, and decided in that Term.
The suing states normally would have thirty days to reply, but they also have the option of asking for more time to file. The government may not be able to head that off, but it also would retain an option to formally ask the Court to expedite its review in order to have it decided this Term, which is likely to end in late June.
(…)
If the Court were to agree with the government’s argument that the states lacked the right to file their lawsuit, that would be the end of the case. The Constitution only allows federal courts the authority to decide actual “cases or controversies,” and the lack of proof that a suing party had any vital interest at stake denies it the right even to file a lawsuit in those courts.
If the Court does confirm a right for the states to have sued, it presumably would then move on to decide whether the deferred-deportation policy was likely ultimately to be found illegal.
Technically, the case has reached the Supreme Court while still in a pre-trial stage. The lower courts, besides finding that the states do satisfy “standing” requirements, issued only preliminary orders blocking enforcement. But they did so on the premise that the states were likely to win their challenge, once it went to a full trial.
The decision to seek review by the Supreme Court is not unexpected. After the ruling by the Court of Appeals, the Federal Government had the option of seeking review by the Justices, seeking review by the entire Fifth Circuit Court of Appeals in an en banc review, or not appealing the matter at all and returning to District Court to fight the cast on the merits. Neither of the last two options seemed likely. As it is, en banc review is something that is discretionary on the part of the Court and may not have been granted, but even attempting to take that step would not have made much sense given that ten of the fifteen Judges in active status on the Court were appointed by a Republican President, meaning that argument before the entire court would have been an uphill battle to say the least. Not appealing the matter at all would have been atypical for the Federal Government in these types of cases, where the Government generally attempts to exhaust its appeals on even a pretrial matter rather than letting adverse rulings stand. Faced with those options, going to the Supreme Court was the best available option.
As with all other cases, the Justices are not required to hear the appeal in this case and it’s possible that they may decide that the procedural posture of the case, in which whatever they rule on their part would only mark the end of the beginning of the case, there may not be four Justices willing to take up the matter. if they do take the case, the question will be whether the appeal can be heard before the end of the current term or whether it would end up being put off until the term that begins in October 2016. My guess would be, though, that if the Justices agreed to take the case they would also agree to take it up on an expedited manner so that it can be ruled on by June of this year.
One thing this would mean, of course, is that the Court would dealing with a number of high-profile cases in which it would be issuing decisions just as the Presidential race is heating up with the party conventions starting in June. In the past several months, the Court has agreed to hear a case involving affirmative action in college admissions from the University of Texas, another case dealing with a Texas law purporting to regulate abortion clinics, a new set of cases dealing with religious objections to the birth control coverage mandate arising from the Affordable Care Act, a case involving the rights of members of public employee unions. a case involving Virginia’s Congressional redistricting that could have national implications, and a case dealing with the meaning of the “one person, one vote” standard when it comes to redistricting. There are also a number of other legal challenges to the Affordable Care Act making their way through the Federal Courts, but it isn’t clear that any of them could make it to the Supreme Court in time to be heard during the current term. In short, even though we don’t have anything on the level of the same-sex marriage cases this term, there will still be plenty on the Supreme Court’s plate between now and June, and plenty of fodder for a Presidential race in which the fact that the next President could have the opportunity to appoint as many as four Justices over the course of the four or eight years they might serve.
