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01-13-2016 11:32 PM |
Next up at the Supreme Court: Obama’s Immigration Policy
Next up at the Supreme Court: Obama’s Immigration Policy
Quote:
The court's past rulings on Obamacare could prove decisive in a case that is up for consideration this week.
BY SIMON LAZARUS
January 13, 2016
On Friday the Supreme Court will have its first crack at considering, in its weekly internal conference, whether to give President Barack Obama a shot at ever implementing his November 2014 decision to shield from deportation, for three years and on a case-by-case basis, over four million undocumented parents of U.S. citizens and legal residents. At the time, the Obama White House framed the order as designed to “prioritize deporting felons not families.”
The Obama administration has requested review of the adverse November 2015 decision by a panel of the Fifth Circuit Court of Appeals in New Orleans, led by an ostentatiously hostile duo of federal judges, to enjoin his immigration initiative. Whether the Supreme Court opts for review—and does so on Friday or soon thereafter—will determine whether the case can be resolved before the justices leave town at the end of June for their summer recess—and hence, whether the Fifth Circuit’s nationwide injunction stays in place through the end of Obama’s presidential term.
The answer to this question, and the ultimate fate of the administration’s program—officially called the Deferred Action for Parents of American Citizens and Permanent Residents, or DAPA—will turn on how the Court handles, as a precedent, its blockbuster decision last June, King v. Burwell, which effectively saved another signature Obama legacy initiative, the Affordable Care Act. In King, Chief Justice John Roberts, writing for a 6-3 majority, rejected an interpretation devised by conservative legal advocates to “drive a stake through the heart of Obamacare.” King’s immediate impact for health reform was certainly important, but its long-term significance could be broader and greater. This is because Roberts spelled out an elaborate reset of the Court’s role in politically charged conflagrations over complex and consequential statutes like the ACA and the immigration laws—vis-à-vis Congress, the executive branch, legal and political activists, and, by implication, litigious state governments.
How seriously the Court takes his King rationale, as a guiding template for future decisions, holds the key to the viability of DAPA. It will also be crucial to the survival of other Obama priorities, notably the EPA’s Clean Power Plan and, yet again, the ACA, currently battling another complaint about low-income health insurance subsidies filed by the Republican-controlled House of Representatives.
If the Court relaxes current standing strictures and reaches the merits of Texas’s claim, the administration’s defense of DAPA’s legality will also be reinforced by Roberts’s King v. Burwell opinion—specifically, his linchpin holding that “a fair reading of legislation demands a fair understanding of the legislative plan.” Implicitly, though pointedly, this focus on Congress’s “plan” sidelined the hyper-literalist brand of “textualism” long touted by Justice Antonin Scalia and conservative allies—frequently used to justify narrowly reading individual words or phrases out of context (as they did in King v. Burwell itself).
In the case of the immigration laws, the crux of that legislative plan, pervasively manifest throughout federal immigration statutes, is to delegate broad discretion to the executive branch as to how to tailor enforcement priorities to funding resources, as limited by Congress, sufficient to remove only a fraction of the total number of undocumented immigrants (400,000 annually, out of a total of more than 11 million). As recently as 2009, a House of Representatives Committee Report specifically confirmed Congress’s direction to the Department of Homeland Security not to “simply round up as many illegal immigrants as possible,” but to ensure “that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.”
The DAPA directive simply sets out guidelines for conferring “deferred action” treatment in accord with enforcement priorities perfectly matching that instruction. Authorization for such deferred action recipients to work and receive work-related benefits arises, not from DAPA, but from longstanding regulations (promulgated by the Reagan Administration) and statutory provisions—a fact recognized two decades ago by the Supreme Court, and flatly ignored by the lower court judges who have made this work-authorization consequence the nub of their argument for halting DAPA in its tracks.
Three and a half years ago, the Court outlined—and endorsed—the conceptual framework undergirding the administration’s interpretation of its immigration enforcement authority. A 5-3 decision in 2012, in an opinion written by Justice Kennedy and joined by Chief Justice Roberts, emphasized that “broad discretion” for “immigration officials [is] a principal feature of the removal system, [including] whether it makes sense to pursue removal at all,” based on, among multiple factors, “immediate human concerns” and “foreign policy.” If the Court takes, as its lodestar for evaluating DAPA, the plan manifest over decades of legislating and administering the immigration laws, it is unlikely that votes will be found to invalidate it—in the (also unlikely) event that a majority will grant standing and reach the merits of Texas’ case.
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https://newrepublic.com/article/1275...gration-policy |
