Cynthia M. Allen

Immigration debate likely to unfold in Supreme Court

President Obama had proposed to protect from deportation an estimated 5 million people living in the U.S. illegally.
President Obama had proposed to protect from deportation an estimated 5 million people living in the U.S. illegally. AP

For critics of executive overreach, there hasn’t been much to celebrate in the most recent slate of high-profile court cases.

Recent decisions have handed significant policy victories to the Obama administration, affirming its penchant for circumventing congressional authority.

But this week the administration suffered a major setback, possibly setting up another high-stakes U.S. Supreme Court battle next year during the height of election season.

On Monday, the U.S. Court of Appeals for the 5th Circuit upheld a decision by U.S. District Judge Andrew Hanen of Brownsville that blocked President Obama’s effort to shield as many as 5 million undocumented immigrants from possible, albeit unlikely, deportation.

Following significant losses for his party in the 2014 midterm elections, President Obama announced his Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, and an expansion of the Deferred Action for Childhood Arrivals, or DACA, a policy that has given rise to very serious legal and policy questions.

Under the president’s unilateral attempt to transform the immigration system, undocumented immigrants who qualified and applied for the programs would be deemed “lawfully present” in the U.S., and thus eligible for a litany of public programs.

The government admitted in court briefs that such entitlements include Social Security retirement benefits, Social Security disability benefits, health insurance under Part A of the Medicare program, as well as unemployment benefits and even an earned income tax credit.

The most maddening aspect of the president’s action was his justification. Absent a workable legislative solution, the president declared he had the authority to act, essentially rewriting the law.

Texas and 25 other states disagreed.

They challenged the administration on both substantive and procedural grounds and scored a victory in February when Hanen enjoined the federal government from implementing its new policies before they took effect.

Hanen ruled the president’s directive would result in “irreparable injury” to Texas due to the costs the state would inevitably incur by providing driver’s licenses to immigrants with newly authorized legal status.

A 2-1 majority in the 5th Circuit affirmed Hanen’s ruling. But it went even further.

In the 70-page opinion by Judge Jerry Smith, the court concluded that all 26 states not only had standing to challenge DAPA, but that DAPA was not authorized by existing federal law.

In his majority opinion, Smith wrote: “At its core, this case is about the [Department of Homeland Security] Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis.”

Based on the administration’s interpretation of the Immigration and Naturalization Act, that change would effectively vest the secretary of homeland security with the unprecedented power “to grant lawful presence and work authorization to any illegal alien in the United States.”

But as Smith noted, “the INA 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 court also struck at the heart of President Obama’s justification for taking action: the failure of Congress to pass a bill.

As Smith explained, “to the contrary, any such inaction cannot create such power: [D]eference is warranted only when Congress has left a gap for the agency to fill pursuant to an express or implied ‘delegation of authority to the agency’… Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony.”

Smith wrote that the plaintiffs were likely to succeed on both their procedural and substantive claims should the case proceed to the high court.

There’s a good chance it will. The Justice Department has already indicated it will be seeking Supreme Court review. But it will have to act quickly if it wants to the case to be heard and decided next year.

Some Democrats think the court battle could boost the party’s appeal with Hispanics, especially during an election year.

But it’s just as likely that the case will be a reminder to all Americans that there are consequences to congressional inaction, but there are even greater dangers to executive fiat.

Hopefully, both will end with the current administration.

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