Obama Pins Hope on Supreme Court After Latest Immigration Defeatby , , and
Decision may come by June if court takes up White House appeal
Lower court's reasoning seen contradicting earlier decisions
President Barack Obama decided quickly to ask the Supreme Court to review the legality of his immigration plan in a bid to salvage the issue as part of his legacy.
Blocked at every turn, first by a Texas federal judge and now for a second time by the U.S. Court of Appeals in New Orleans, he is running out of time. Obama is up against 26 states that last year sued to block the initiative, which would shield more than 5 million undocumented immigrants from deportation.
The appellate court went further than the Texas judge in determining Obama crossed the line by single-handedly altering U.S. immigration rules, said Stephen Yale-Loehr, an immigration-law expert with Cornell University Law School. Since the 1950s, U.S. courts have “taken a lighter hand” in reviewing immigration policy under the theory that Congress and the president have the right to make those calls, he said.
The majority “ignored that precedent,” Yale-Loehr said Tuesday. “The appeals court held not just that the executive action failed to follow procedural formalities but that the administration lacked the legal authority.” The appellate court’s departure from established law may boost the odds the Supreme Court will want to weigh in.
But even if the justices agree to take the case, the odds may not be in Obama’s favor. The administration will have to persuade at least one of the five Republican-appointees who form the court’s conservative majority.
In its opinion late Monday, the New Orleans appeals court held that the federal judge’s ruling, which blocked the immigration plan while the state lawsuit moves ahead, was “impressive and thorough.” The panel’s two-judge majority said the states would probably win the lawsuit in the end.
The lower court judge, whose courthouse sits near the Mexican border in Brownsville, ruled the White House had skipped required federal policy making steps. He halted the program in February, hours before it was to begin.
Obama’s initiative affects undocumented immigrants who have been in the U.S. for at least five years, can pass a criminal background check, and have a child who is an American citizen. The president announced the unilateral policy shift in November 2014, after he failed to persuade the Republican-controlled Congress to approve changes he said would bring undocumented immigrants “out of the shadows” into productive society.
The White House Tuesday said it would seek high court review. If the Supreme Court takes the case, it would thrust immigration policy back onto center stage in the 2016 presidential contest. Newly elected Speaker Paul Ryan has said House Republicans won’t be offering legislation on immigration reform, calling Obama an unreliable partner because he had attempted to bypass Congress with executive orders.
“The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws,” the White House said in a statement. “This lawsuit is preventing people who have been part of our communities for years from working on the books, contributing to our economy by paying taxes on that work, and being held accountable.”
The appeals court ruling “pretty effectively closed down any meaningful chance of immigration reform before Obama leaves office,” Richard Murray, a pollster and political science professor at the University of Houston, said in a phone interview. The Supreme Court will likely order the status quo maintained as the court fight continues, out of reluctance to “inject itself” into such a divisive issue, “especially during the final year of a presidential term,” Murray said.
If the high court’s four Democratic appointees vote to take the case, the decision would come in June, “just as the political parties are settling in on their candidates,” Murray said. “Immigration has already become a huge issue; I think it will be a wedge issue in the presidential campaign.”
House Minority Leader Nancy Pelosi, a California Democrat, called the court decision "misguided" in a statement Tuesday. “While we remain confident that President Obama’s executive actions will be upheld, they are no substitute for Congress acting to pass the comprehensive immigration reform our nation so urgently needs,” she said.
Senate Minority Leader Harry Reid, a Nevada Democrat, said on the Senate floor Tuesday that Obama has “the legal authority to establish clear immigration enforcement priorities and allocate resources accordingly.”
“Why did he do it? Because he was trapped,” Reid said of Obama’s decision to go around Congress. “He had to do it because Republicans refused to legislate."
Republicans were jubilant, and confident of success. Senator Tom Cotton, an Arkansas Republican, said the appeals court decision “is yet another confirmation of the lawlessness at the foundation of President Obama’s ‘legacy-making’ initiatives.” Representative Diane Black, a Tennessee Republican who signed a brief in favor of the state lawsuit, praised the ruling as “an important victory for law abiding immigrants and taught President Obama a much-needed civics lesson.”
“Real reform starts with securing our border, not granting backdoor amnesty to some five million people -- an action that will only encourage greater illegal immigration,” she said in a statement.
The majority of states suing to block the program criticize it as “executive amnesty,” which may cause people in the country illegally to receive benefits such as Medicaid and Social Security. They complained the president overstepped his constitutional authority by altering national immigration policy without Congressional approval.
More than a dozen states have sided with the White House, arguing that letting undocumented immigrants work and pay taxes in the U.S. would generate revenue exceeding the states’ cost of providing additional services to them.
The appeals court ruling was the third time the courts have agreed with the states’ argument that the public should have been allowed to review and comment on the policy before the White House rolled it out.
In the 2-to-1 decision, the majority, both Republican appointees, ruled the states could sue because they face “a concrete threatened injury in the form of millions of dollars of losses” if they’re forced to provide services, such as drivers’ licenses, to undocumented immigrants.
While Obama’s program itself doesn’t convey federal benefits, the work permits it provides could lead to Social Security, Medicaid and tax credits, which may be beyond the president’s power to grant, the court’s majority ruled.
U.S. Circuit Judge Carolyn King, nominated by Democratic President Jimmy Carter, dissented. She agreed with the administration, writing that immigration officials should focus their limited resources on removing criminals rather than on deporting law-abiding immigrants and breaking up families. King added that states don’t have the power to question Obama’s immigration-policy decisions.
Even if the Obama administration wins a reprieve from the Supreme Court, the program may be invalidated later following a trial, which may trigger yet another round of appeals depending on who wins the White House next year.
“If the Supreme Court takes up the case and rules by the end of June, they’ll likely merely void the injunction and send the case back down to Texas for trial, which will lead to yet another appeal,” Yale-Loehr said. “If that’s the case, there’s no way this will be concluded before the Obama administration leaves office.”
The appeals court case is Texas v. U.S., 15-40238, U.S. Court of Appeals for the Fifth Circuit (New Orleans).