Photo by White House photographer Pete Souza via Flickr
In November of 2014, President Barack Obama—fed up with Congress's failure to move on his second-term agenda, unveiled an executive order to implement modest reforms to the country's broken immigration system. The order offered temporary legal status to nearly 5 million immigrants, and gave them an indefinite reprieve from deportation, mostly shielding parents of children with US citizenship or legal status from being sent back to their respective home countries.
The idea, Obama said at the time, was that the order would finally offer people living in the US illegally to "come out of the shadows" without fear of immigration agents tearing them away from their families.
Shortly after the order was signed, Texas, along with 25 other, mostly Republican-led, states, began challenging it in court. They have won every round so far, prompting the Obama administration to ask the Supreme Court to rule on the issue. On Tuesday, the justices announced that they would take up the case. Oral arguments are expected to begin in April, and hand down a ruling by June. and an appeal from the Obama administration that has now made its way to the Supreme Court.
The way the court rules on Obama's order will have huge implications for the 11 million immigrants living in the country illegally, and for a political issue that has long been a third rail in politics. There's a lot to unpack, so we rang up Rick Su, a professor of immigration law at University at Buffalo law school, to help.
VICE: Let's start with the big question: How do you think the Supreme Court's review of Obama's immigration order will pan out? Is there any indication on which way the justices are leaning?
Rick Su: At this point, it is really hard to tell. The Supreme Court has the discretion to choose which cases it decides to review. As a result, the fact that it chooses to review a particular case usually offers some clue on what it intends to do. This case, however, is unique in that it was almost inevitable that the Supreme Court [would] take it up. It concerns the fate of a major executive policy, one that President Obama wants to be part of his legacy.
In some ways, the Supreme Court had to take up this case, if only because the consequences of not doing so would have been so dire. The lower court decision prevents the president from implementing that policy, but only in the parts of the country that the court has jurisdiction over. It also has broad political implications, especially given the upcoming presidential election.
This case is further complicated by the fact that the states themselves divided on the issues. While a coalition of states is leading the challenge against the executive order, many states are actually siding with President Obama. Similarly, many states involved in the suit against the federal government are actually internally divided on the order themselves. Indeed, many cities located within the states challenging the federal government have come out in support of the executive order and against their own state's [position]. From this perspective, even though the case seems like a traditional federalism dispute, with states on one side and the federal government on the other, the political reality is a lot more complicated.
What do Obama's opponents object to most about the executive order?
There are a number of important legal issues surrounding Obama's executive order, but the number one reason why it has drawn such strong opposition, especially in comparison to executive actions by other presidents in the past, is politics. The executive order touches upon legalization and amnesty, which are issues that Congress has been debating for decades but has thus far been unable to resolve. It concerns an issue that has, in recent years, become a dividing line between Republicans and Democrats. By taking on the case, the Supreme Court has in many ways become the new battleground where this political war is being fought.
Some of the opposition is directed at the specifics of the executive order. But my sense is that most of the controversy is driven by the broader political debates about immigration generally.
It is telling, however, that the main objections to Obama's executive order are not what the states are technically arguing in court. To justify their standing to sue, the states are pointing to the fact that the executive order will require them to spend state resources processing driver's licenses for those immigrants spared from deportation. This is the harm that the states are alleging. But it is clear from the statements made by the state officials backing the lawsuit that this is hardly their primary concern. They are far more interested in the political capital to be gained from the lawsuit than in the financial impact the executive order will have on state coffers.
Obama has said his action would help immigrants "come out of the shadows and get right with the law." What is the benefit to this?
There are a number of reasons why having a large undocumented population in the shadows is a concern. Economically, it has an impact on wages and working conditions. A longstanding concern with immigrants generally, and undocumented immigrants in particular, is that they depress wages for all Americans. Ironically, however, undocumented immigrants have an effect on wages in part because they lack legal status. Some employers may be more likely to prefer undocumented labor because they believe they can pay [undocumented workers] lower wages and subject them to illegal working conditions because undocumented immigrants will be less likely to complain or seek the protection of existing labor laws. e should not overlook the personal harms that our current immigration law imposes on the undocumented population and the people close to them. Again, undocumented immigrants are not entirely without fault; after all, they or someone they knew made the decision to come to the United States illegally. At the same time, it is worth asking whether the punishment fits the crime. Many undocumented immigrants have made their lives in this country. They are our neighbors and our coworkers, but they are without the protections and rights that we take for granted. Those who were brought here as children have worked hard in school and dreamed the American dream, but are denied the opportunities to live up to their full potential. For many undocumented immigrants, America is their only home. They are Americans in all ways except for their legal status. America is a country of laws. But it is also a country in which laws are continuously revised to reflect realities on the ground.
So far, the lower courts, including the Fifth Circuit Court of Appeals, have sided with the states opposing Obama's 2014 immigration orders. How might these rulings influence the Supreme Court on this issue?
Legally, the lower court decisions do not bind the Supreme Court in any consequential way. Yet in some ways, it seems the way that the lower courts' decisions have already influenced the Supreme Court's thinking on this issue. In addition to the legal questions raised by the federal government in its petition, the Supreme Court has requested the parties prepare to answer questions about whether the executive order violates the constitutional requirement that the president "shall take care that the laws be faithfully executed."
This follows from the lower court's ruling that even though the president is afforded discretion in immigration enforcement by Congress, the nature of this executive order goes beyond discretion and violates the spirit of existing immigration laws. It is not clear the extent to which this question will play into the Supreme Court's ultimate decision. Yet the fact that they added this seems to suggest that the lower court's decision has already in some ways framed the way the Supreme Court is thinking about it.
So in some ways, this case is about more than immigration?
How the Supreme Court decides the states' standing in this case will likely have broad implications for how political battles are fought going forward. If it is easy for states to sue the federal government over policy disagreements simply by alleging some kind of harm, no matter how insignificant or trivial, then states are likely to continue to play an increasingly larger role in national political debates. Moreover, by going to the courts, the fate of major policy decisions could ultimately be determined by courts rather than elected officials.
Of course, if the Supreme Court finds that there is no standing for the states to challenge the executive order in this case, then the bar for states to sue will be raised, and they will likely play less of a role [in these types of] political controversy. In this respect, the implications of this decision extends beyond the issue of immigration, and may have broader consequences for American politics more generally.
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