The Obama administration will ask the Supreme Court to overturn a lower court injunction that has held up a new program that potentially would shield up to 5 million undocumented immigrants from deportation. The decision to take the case to the high court comes a day after a federal appeals panel ruled against the administration, keeping the new program on hold nearly a year after President Obama announced it.
“The Department of Justice remains committed to taking steps that will resolve the immigration litigation as quickly as possible,” said Patrick Rodenbush, a spokesman for the agency. “The Department disagrees with the Fifth Circuit’s adverse ruling and intends to seek further review from the Supreme Court of the United States. “
Administration officials said they hope the court will take the case in the spring and issue a ruling by June, which, if favorable, could allow the program to begin in the summer, with just months left in Obama’s term. Republican presidential candidates have said they would dismantle the program, adding urgency to the administration’s efforts to get it started.
The U.S. Court of Appeals for the 5th Circuit on Monday upheld a lower court ruling that said the administration had not provided adequate public notice before attempting to change federal enforcement policies after Obama announced the program through executive action. The decision, by a 2-to-1 margin, was a setback for the president.
“Thanks to the Fifth Circuit, the injunction on the President’s unlawful maneuvering to implement his own policies, without regard for Congress, the law or American workers remains in place,” said Sen. Charles E. Grassley (R-Iowa), who opposed a comprehensive immigration reform bill approved by the Senate in 2013. That bill died in the Republican-controlled House last year, prompting Obama to act unilaterally.
“The Obama administration does not have unfettered authority to execute whatever it wants,” Grassley said. “The President simply can’t singly rewrite the country’s immigration laws. This is a win for the checks and balances established by the Constitution.”
White House officials and immigration advocates remain confident of an eventual legal victory, but losses in several rounds of legal battles, before a series of mostly conservative-leaning judges, have frustrated them. The federal appeals panel agreed with the lower court that the administration had not used adequate discretion in starting a massive program that would provide three-year work permits and access to federal benefits to a large class of undocumented immigrants.
Obama’s Deferred Action for Parents of Americans (DAPA) program “instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were ‘merely pretext,’ ” Judge Jerry Smith wrote in his majority decision to uphold the February injunction from a District Court in Brownsville, Tex., that halted the program.
The president’s bid to remake immigration laws is among his top second-term priorities, but the long political fight to provide relief for many of the 11 million immigrants living in the country illegally has resulted in only modest gains for advocates during Obama’s tenure.
The administration has said that DAPA is modeled after a 2012 program that has postponed the deportations of hundreds of thousands of immigrants who entered the country illegally as children. The new program, which could cover an estimated 4.3 million people, would allow the undocumented parents of U.S. citizens to receive work permits, provided they have lived in the country for at least five years and have not committed any other crimes. In addition, the administration intends to expand the 2012 program for younger immigrants.
District Judge Andrew Hanen ordered the injunction in February, after Texas and 25 other states sued on the grounds that the program would burden states, which would have to cover the cost of issuing driver’s licenses to those who qualified for the program.
Justice Department lawyers argued that the states did not have legal standing to bring a case that challenges border control policies that are set by the federal government. Obama said he acted unilaterally after Congress did not pass a comprehensive immigration reform bill last year. An estimated 11 million undocumented immigrants are living in the United States, but the administration has deported 300,000 to 400,000 a year because of limited resources.
Obama said his directive would streamline enforcement to focus on violent criminals and newly arrived immigrants who enter illegally.
Although deferred action is often used by law enforcement agencies to set priorities with limited resources, a program on such a massive scale has never been attempted before. The administration said that immigrants must undergo a formal application process that involves filling out paperwork and being screened by the Department of Homeland Security. But the states argued that all but a tiny percentage of the applicants in the 2012 deferred action program were granted work permits.
The 5th Circuit panel that ruled Monday included two judges — Smith and Jennifer Elrod, both appointed by Republican presidents — who had ruled against the administration’s stay request in May and maintained their stances. A third judge, Carolyn Dineen King, appointed by President Jimmy Carter, was not on the earlier panel, and she dissented Monday, ruling in favor of the Obama administration.
“The district court’s conclusion that DAPA applications will not be reviewed on a discretionary, case-by-case basis cannot withstand even the most deferential scrutiny,” King wrote in a dissenting opinion. “Today’s opinion preserves this error.”
She added that the court took far too long to make the decision, which immigration advocates have speculated was aimed at providing the Obama administration a narrow window to get the case before the Supreme Court in the spring.
“There is no justification for that delay,” King wrote.
Rep. Luis V. Gutierrez (D-Ill.), a longtime immigration advocate, said that “the law and common sense are so clearly on the president’s side that it is only a matter of time before these deferred action programs are fully implemented.”
Generally, the Supreme Court must accept a case by January in time to hold oral arguments and decide it by the end of June, when the justices leave for the summer. But there are milestones that must be passed before January.
“It’s hard to do but it can be done,” said John P. Elwood, a Washington lawyer who argues before the high court and keeps close track of petitions to the court for Scotusblog.com.
Elwood said the government would need to get its petition to the Supreme Court by the end of November — a tight timetable for an issue such as this — and then oppose any attempt by Texas to get an extension before filing its “brief in opposition.” That is basically its brief telling the court why it should not accept the case. The government might be lucky that the decision is from the U.S. Court of Appeals for the 5th Circuit. If Texas asked for an extension and the government opposed, the justice for the circuit would have to decide. That would be Justice Antonin Scalia, and Elwood said Scalia has a reputation for not allowing extensions.
The court will meet in private conference Jan. 8, 15 and 22 to make decisions about accepting additional cases. Last year, the U.S. Court of Appeals for the 6th Circuit upheld same-sex marriage restrictions in four states on Nov. 9, 2014, and the court accepted the cases on Jan. 16. They were argued in April and decided in June. But in those cases, both sides were motivated to move quickly — they wanted the court to take up the issue.
Texas has no such motivation because it won. If the court does not take up the issue this term, the 5th Circuit decision probably would stay in place until Obama left office.
There are two caveats, Elwood said, and both are rare. The court could accept the case later — the next chance after those January dates would be Feb. 19 — and order expedited briefing to hear it before its last scheduled oral argument day, April 27. Or it could schedule an oral argument day in May. That would be highly unusual but it has done so before in cases of extreme importance.
In 1996, the Antiterrorism and Effective Death Penalty Act of 1996 took effect, making many changes in the way death penalty appeals were handled. A Georgia death row inmate facing pending execution brought a case to the Supreme Court challenging the law’s constitutionality. The court heard oral arguments on June 3, 1996, and issued a ruling on June 28.
Robert Barnes contributed to this report.