The hotly contested executive action on immigration announced in November 2014 by President Barack Obama and challenged soon thereafter in a lawsuit seeking injunctive relief brought by 26 states, led by the State of Texas, is now poised for a final showdown before the U.S. Supreme Court. At stake in the case are pivotal issues concerning executive authority, the separation of governmental powers, and deportation relief and work authorization for approximately 5 million undocumented immigrants. The recent death of Justice Antonin Scalia adds to the drama and speculation surrounding the case, and may help to tip its ultimate resolution in the administration’s favor.
On Tuesday, January 19, 2016, the Supreme Court granted certiorari in U.S. v. Texas, providing the Obama administration a final opportunity to appeal a preliminary injunction imposed by the U.S. District Court for the Southern District of Texas. That injunction has so far prevented the Department of Homeland Security (DHS) from implementing a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanding the existing Deferred Action for Childhood Arrivals (DACA) program, which had been core components of President Obama’s executive action.
What pivotal issues are at play in U.S. v. Texas?
The issues the Supreme Court will address fall into three distinct categories:
1. whether Texas, and the other states, will suffer a sufficient injury—particularly in the form of costs associated with issuing driver’s licenses, healthcare, education, law enforcement and other benefits to undocumented immigrants with newly found lawful status—providing them standing to sue;
2. whether Secretary Jeh Johnson’s memorandum setting forth the Obama Administration’s immigration policies violated the Administrative Procedure Act governing how the Executive branch must promulgate certain rules; and
3. whether Secretary Johnson’s memorandum violated the Take Care Clause of the Constitution by failing to enforce the immigration laws Congress has already created.
From a strategic standpoint, ruling in favor of the United States on the standing issue would allow the Supreme Court to avoid the political minefield associated with the more nuanced immigration rulemaking questions. Specifically, if the Supreme Court finds that the benefits that flow from the Obama Administration’s DAPA and DACA initiatives are too indirect for standing, then the case is over and the injunction is defeated because the Federal district court would have never had jurisdiction to hear the case in the first place. Thereafter, the Obama Administration could immediately implement the executive action.
But if the Supreme Court agrees that the states will suffer an injury, particularly Texas, then it will need to dive headfirst into whether the DACA/DAPA memorandum was a rulemaking under the Administrative Procedure Act. The word choice by the parties in their briefing to the Supreme Court actually highlights the key distinction here. On one hand, the United States claims Secretary Johnson’s memorandum is mere “guidance” not rising to the level of rulemaking invoking the APA’s oversight. On the other hand, the states argue the Obama Administration’s initiatives are a “detailed, complex statutory scheme for determining when an alien may lawfully enter and be present in this country” requiring application of the notice-and-comment procedures in the APA. It is this issue where the political teeth will show for the Justices as they work through the scope of the Federal government’s authority on immigration.
It is this issue where the political teeth will show for the Justices as they work through the scope of the Federal government’s authority on immigration.
Finally, the Take Care Clause arguments target whether the Obama Administration can set policy in the United States based on how it chooses to enforce the laws created by Congress. In other words, does the Obama Administration’s choice to enforce—or not enforce—certain laws violate the Constitution’s separation of powers principles that state the executive branch must enforce the laws created by the legislative branch. Or, does this choice to enforce or not enforce effectively create a completely new rule that fails to adhere to these separation of powers principles. In this area, the United States argues that no previous court has ever extended the Take Care Clause of the Constitution to the depth claimed by the plaintiffs. This creates an interesting voyage for the Court and will only likely be in play if the conservative justices can’t obtain enough votes on the other issues in the case.
...until the oral arguments are heard, the Justices’ votes cast, and the opinion handed down, the programs should be considered in limbo.
How Does Justice Scalia’s Death Impact Employers?
Most observers expected that Justice Scalia would have ruled against the Obama Administration had he been able to hear the case. But, Justice Scalia’s influence on the other justices cannot be discounted either, particularly as they deliberate the issues involved in this case. In the end, Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer, are generally expected to side with the Obama administration. Thus, without Justice Scalia’s voice or vote, there now seem to be two potential outcomes. First, the Court could split (Ginsburg, Sotomayor, Kagan, and Breyer vs. Roberts, Kennedy, Thomas, and Alito) in a 4-4 tie vote, effectively leaving the lower court’s injunction in place. Second, the vote could come out in the Administration’s favor (with Justice Kennedy likely being the swing vote), permitting the underlying programs to be implemented while President Obama is still in office. Without Scalia, however, an outright majority vote against the Administration is highly unlikely. Despite the prevailing conventional wisdom, until the oral arguments are heard, the Justices’ votes cast, and the opinion handed down, the programs should be considered in limbo.
Removing political arguments, these immigration initiatives would increase the legal workforce available to employers, if implemented. This increase could be dramatic in certain areas of the country and in industries where there is a high population of undocumented workers. Thus, employers who are in need of labor could see a huge infusion of participation in the lawful workforce. Employers also may see current employees disclosing their previous unlawful work status in the United States creating compliance questions on how to correct Forms I-9 and handle violations of potential workplace policies. Unfortunately, with the uncertainty around the case, there is no clear direction for employers to move. Instead, we are waiting to see how the nation’s highest court tackles these outstanding issues.
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[Christopher L. Thomas is a shareholder and Phillip W. Pemberton is an associate in the Immigration Practice Group at Ogletree Deakins. Both are based in the firm’s Denver office. ]
