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As The Supreme Court Considers Whether To Take Up Immigration Case, Here’s Why They Should

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Tomorrow, the U.S. Supreme Court will discuss whether to hear U.S. v Texas – the legal case that has blocked President Obama’s decision to confer protection against deportation and work permits to individuals who are low priority for immigration enforcement.  In anticipation, two new must-read pieces assess what’s at stake and why the Supreme Court should take up the case and rule in favor of the executive action policies.

Writing for The New Republic, Simon Lazarus makes a strong case for why the Supreme Court should both take up the case and rule in favor of the executive action programs:

…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.

…As I have written, Roberts’s thinly veiled warnings against political attacks dressed up as legal claims follow from his concern, broached in a November 2014 speech, that “polarization” in the political branches could “spill over and affect” the Court. Of course, that spillover perception has already reached epidemic levels. For the first time since the 1930s, the likely 2016 Democratic presidential nominee has made Supreme Court appointments a major issue, warning that “conservatives are wholeheartedly relying on Republican-appointed judges to undo progressive achievements.” Republican candidates vow litmus tests that would preclude any nominee who, like Roberts or Justice Anthony Kennedy, might in some cases decline to rubber-stamp the political agenda of the party’s right-wing. Mainstream media accounts now frequently view even the lower federal courts through the lens of the party affiliation of individual judges’ nominating presidents.

If Roberts stays focused on shielding the judiciary from such perceptions, the Court’s response to the Fifth Circuit’s DAPA decision should be straightforward. It will accept review and dismiss the case on the ground that the party that filed it, the state of Texas (on behalf of 25 similarly Republican-led states), has asserted no injury that gives it legal “standing” to get its grievance into court.

…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.”

Meanwhile, Rep. Lucille Roybal-Allard (D-CA) pens an op-ed in The Hill titled, “Case for DAPA was made by presidents Reagan and H.W. Bush,” undercutting some of the legal reasoning used by lower courts in the process:

“The strongest historical precedent for this administration’s immigration actions comes from President Ronald Reagan and President George H.W. Bush. Their Family Fairness policy from 1987-1990 is a policy that my father, Rep. Edward Roybal (D-Calif.), strongly supported.  Under Family Fairness, the Immigration and Naturalization Service (INS) ultimately made up to 1.5 million unauthorized spouses and children of those who legalized under the Immigration Reform and Control Act (IRCA) eligible for temporary protection from deportation and work authorization. At the time, the Family Fairness policy was estimated to cover about 40 percent of the unauthorized population, roughly the same proportion covered by DAPA and expanded DACA today.

In ruling against expanded DACA and DAPA, the 5th Circuit Court of Appeals reached its decision in part by engaging in revisionist history. They claimed that the Family Fairness policy cannot count as precedent for expanded DACA or DAPA, because it was either blessed by IRCA before it, or was somehow legitimated by the subsequent passage of a new piece of legislation, the Immigration Act of 1990. But if that was the case, my father’s years of advocacy would have been unnecessary.

…Describing the Family Fairness policy as merely filling a gap in the IRCA legalization scheme or as a short-term measure that acted as a bridge until further legislation could be enacted—as the lower court did—is nothing less than revisionist history. It was because of members of Congress like my father, and important members of the community that fought to preserve family unity, that the policy was adopted in the first place. And it was the adoption of the policy that helped to move Congress to enact a sensible and compassionate legislative response.

Together with 217 of my colleagues in both the House of Representatives and the Senate, I filed a friend-of-the-court brief arguing that the strong legal basis for these policies flows from authority that has long been delegated by Congress and from decades-old regulations that went through the rulemaking process.

It is my hope that once DAPA and expanded DACA are permitted to take effect and millions of Dreamers and parents of American citizens are permitted to come forward, pass background checks, and more fully participate in our communities, Congress will act consistent with the will of the American people and enact sensible immigration reform legislation. Doing so will honor the legacy and the principle of family unity my father, as well as President Reagan and the elder President Bush, championed.”