Make no mistake about it: Immigration reform is a political hot potato. The case pending in the United States Supreme Court, United States v. Texas—which the Court just heard Monday—is simply the latest battle in the long—and, at times, bloody—political war over immigration reform. Texas has made it clear that it disagrees with President Obama’s immigration policy choices and appears to be using the federal courts to achieve political ends not envisioned by the framers of the U.S. Constitution. The lawsuit, based primarily on technical and generally unpersuasive administrative law procedural claims, strongly suggests that the suit is little more than a political gambit.
It is difficult to say after oral argument how the Supreme Court will decide the case. Matters are complicated by the fact that, with Justice Antonin Scalia’s untimely death, the Court could be split 4-4, thus allowing a lower court injunction prohibiting the implementation of the Obama Administration’s November 2014 immigration program to stand. Still, the fact that the Court appeared divided suggests that the case may raise some close questions.
The Obama Administration was not way off base legally in the November 2014 deferred action programs. Immigration has been debated in Congress for more than a decade. A vocal supporter of comprehensive immigration reform, President Obama’s 2008 election generated optimism among reform proponents. Hoping to convince Congress to pass legislation, he dramatically boosted the number of deportations during his first term in office, removing around 400,000 noncitizens annually—more than any administration in U.S. history. Some pro-immigrant activists have even referred to him as the “deporter in chief.”
In 2013, the U.S. Senate passed a comprehensive immigration reform bill. It would have increased enforcement but also would have eased the provisions for legal immigration and provided a path to legalization for eligible undocumented immigrants. The Republican House leadership never allowed the bill to come up for a vote, so in 2012, the Administration announced the Deferred Action for Childhood Arrivals (DACA) program, which granted “deferred action” to eligible immigrants brought to the U.S. as children. The U.S. government announced that it would exercise prosecutorial discretion and not target undocumented youth for removal who were otherwise law-abiding. It instead would focus removal efforts on criminals and suspected terrorists.
Republicans have since been claiming that President Obama was arrogating congressional power by enacting immigration reform that only Congress constitutionally could do. And now Texas—on behalf of 26 states—is suing in federal court, challenging the expanded deferred action programs. The deeply political nature of the dispute can be seen in the many friend-of-the-court briefs filed in the Supreme Court on both sides of the political spectrum. For example, a brief filed by Republican members of Congress in support of the states challenged the lawfulness of the Obama program. In contrast, a brief filed by Democratic members of Congress sided with the Administration.
Some of the political hyperbole has obscured the fundamental truths underlying the issues raised by United States v. Texas:
We expect government to exercise prosecutorial discretion in enforcing the laws. Texas fails to recognize that the deferred action “guidance” issued by the Obama Administration in November 2014 is a routine exercise of prosecutorial discretion. Deferred action places low priority on the removal of certain undocumented immigrants, and the idea is that the U.S. government should focus its removal efforts on true dangers to society, not otherwise law-abiding residents. Law enforcement and prosecutors on a daily basis exercise discretion in deciding which violations of the law to prosecute, such as focusing on speeding rather than jaywalking, or heroin dealing instead of simple possession of marijuana. Exercising prosecutorial discretion is precisely what the government should do to enforce the laws, including immigration laws.
Deferred action is limited relief. In other words, the U.S. government acknowledges that President Obama’s deferred action programs would provide temporary, limited relief to certain undocumented immigrants. Recipients would not be transformed into lawful permanent residents, a legal path that only Congress could create. The Administration has not purported to create a pathway to U.S. citizenship for undocumented immigrants. Indeed, a new president could abolish the deferred action program. And, if a deferred action recipient commits a crime, he or she could be subject to removal. Although work authorization can be secured by deferred action recipients under a regulation put into place during President Ronald Reagan’s administration, Congress could eliminate it if it so chose.
One of the technical legal issues before the Court is whether states have the “standing” necessary under Article III of the U.S. Constitution to sue in federal court. (Interestingly, conservative justices, such as Chief Justice Roberts, often invoke standing doctrine to limit access to the federal courts.) Texas claims that the “injury” that justifies its standing is the increased costs it will bear for providing driver’s licenses to deferred action recipients, though several justices have expressed doubts about the case belonging in federal court. Texas’ argument is a bit of a stretch and, if accepted, opens the door to federal lawsuits by the states meddling for partisan political reasons with federal law enforcement decision, such as drug enforcement and tax enforcement.
United States v. Texas also raises complex administrative law questions. One such question is whether the Obama administration’s 2014 deferred action “guidance” was issued in compliance with the Administrative Procedure Act (APA). Specifically, was the “guidance” subject to the APA requirement that regulations be made available for notice-and-comment by the public before going into effect? Administrative law professors generally agree that the president’s arguments are on firm ground on this point.
In short, United States v. Texas is just another stop on the road to true reform of the immigration laws. It remains deeply uncertain when the nation will come to the end of that journey.
Kevin R. Johnson is dean of the University of California, Davis School of Law.