For nearly six years, U.S. policymaking on immigration was stuck. The Obama administration had already increased border security and enforcement in the hopes of creating the political conditions necessary for legislative changes, but congressional Republicans wouldn’t budge. GOP lawmakers said, repeatedly and in no uncertain terms, that there would be no compromise.
In November 2014, soon after the midterm elections, President Obama announced he’d found a way forward, overhauling immigration policy through his executive authority. The result was a policy known as DAPA – Deferred Action for Parental Accountability – in which the White House, among other things, extended temporary status to millions of undocumented immigrants, shielding them from deportation threats and allowing them to apply for work permits.
At the time, the Justice Department took the unusual step of publishing a dense, 33-page legal memo, explaining in great detail exactly why the president’s executive actions are legally permissible under existing laws, rulings, and precedents. Federalist Society members couldn’t come up with a constitutional objection; Obama’s actions are in line with what some of his Republican predecessors did without incident; and the whole legal argument against Obama’s actions seemed a little silly.
The White House’s Republican critics, however, felt a little differently, and 26 states a filed suit challenging DAPA. As Vox’s Dara Lind explained over the weekend, oral arguments in this case are scheduled for this morning at the Supreme Court. United States v. Texas, she noted, is “the most important immigration case the Supreme Court has taken up in a generation (or, arguably, a century).”
Because immigration is such a divisive culture war issue – and because phrases like “enforce the law” get tossed around frequently as talking points – it sure seems like this case should be a massive legal dispute over what should happen to unauthorized immigrants in the US. But it’s not. There are four questions at play in the case, and all of them are, given the importance of the case, relatively narrow.
The questions focus on whether Texas has the authority to challenge DAPA; did the administration follow the necessary procedures when approving the policy; did the president have the authority to move forward on DAPA; and is the policy itself constitutional.
For the White House, Democrats, immigration advocates, and most legal experts, the answers to each of these questions are pretty obvious. And, as it turns out, for conservatives, the answers are equally obvious, though they predictably reach the opposite conclusion.
MSNBC’s Amanda Sakuma noted last week that the Obama administration is optimistic about prevailing at the Supreme Court, but if the justices disagree, “there is no immediate plan B.”
[W]hat if the Supreme Court’s decision in the case is a 4-4 split? The lower court’s ruling on the actions would remain on hold, leaving the programs on ice. Or what if the justices side with the 26 states that are suing the federal government? The result would nearly diminish all chances of those programs ever seeing the light of day.
No matter how the justices rule, the fight will quickly transition from the court room to the campaign trail since the Obama administration’s policy is exactly that: the Obama administration’s policy. A Clinton, Sanders, Trump, or Cruz administration would have the authority to unveil a brand new approach starting next year – and while the Democratic candidates have vowed to build on the president’s approach and take it further, the Republican candidates have made no secret of their intentions to eliminate DAPA in its entirety.
But setting the stage for that fight will be one very closely watched Supreme Court ruling. While oral arguments usually last 60 minutes, this case will get 90 minutes, including 15 minutes reserved for U.S. House Republicans, who are not a party to the case, but who want to complain for a while.
Watch this space.
Postscript: Richard Lugar, a longtime Republican senator and governor, has an op-ed in the New York Times this morning endorsing the White House’s position. “[W]hether or not you like President Obama’s actions, he has operated under longstanding provisions of law that give the executive branch discretion in enforcement. This presidential prerogative has been recognized explicitly by the Supreme Court. Moreover, the nature of immigration enforcement and the resources (or lack thereof) appropriated by Congress necessitate exactly the type of choices that the president has made,” the Indiana Republican wrote.