This story is over 5 years old.

The Supreme Court Will Determine the Fate of Millions of Undocumented Immigrants

In hearing a challenge to Barack Obama's plan to shield as many as five million people from deportation, the Supreme Court will determine whether he overstepped his authority in enacting a sweeping immigration overhaul without congressional approval.
Photo by Michael Reynolds/EPA

As many as five million undocumented individuals living in the US could be shielded from deportation later this year, now that the Supreme Court has decided to hear a case on President Barack Obama's proposed immigration action.

Obama unveiled the reforms back in November 2014, announcing the establishment of a program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) to help undocumented immigrants who are parents of US citizens, and of expanded Deferred Action for Childhood Arrivals (DACA) who are longtime American residents. Successful applicants to the programs would be protected from deportation and granted work permits. But before the executive could be implemented, the Republican attorney general of Texas led a 26-state lawsuit to block it, winning an injunction.


The Obama administration appealed the injunction to the Supreme Court last November, and had asked the court to hear the case soon in order to avoid DAPA and the expansion of DACA being stalled for the remainder of his term in office. On Tuesday, the court agreed to hear the case in April and decide it sometime before the end of June, just seven months before the next president is sworn in.

The court's announcement sparked new hope among advocates and members of the immigrant community who say that the reforms will preserve families and help students who have spent most of their lives in the US. The White House praised the court's decision to hear the case, declaring that it is "confident that the policies will be upheld as lawful."

Related: President Obama Announces Executive Action on Immigration

"The deferred action policies announced by the president in November 2014 will provide greater opportunities for immigrants to contribute to our society — opportunities for young people who came to our nation as children and grew up pledging allegiance to our flag, as well as parents of US citizens and lawful permanent residents who have lived here for years and are already making contributions to our communities and economy," White House spokesperson Brandi Hoffine said in an emailed statement.

"The policies will make our communities safer," she continued. "They will make our economy stronger."


Opponents of the reforms hope that the Supreme Court, which previously dismissed two challenges to Obama's healthcare reform law, will rule the president's executive action unconstitutional. Texas and other states have argued that he overreached his authority in bypassing Republican opposition and enacting a sweeping immigration overhaul without congressional approval.

Texas has claimed the program would hurt the state economically, since Texas subsidizes driver's licenses and would have to provide more licenses if it had more legal residents.

"In deciding to hear this case, the Supreme Court recognizes the separation of powers," Texas Attorney General Ken Paxton said in a statement. "The court should affirm what President Obama said himself on more than 20 occasions: that he cannot unilaterally rewrite congressional laws and circumvent the people's representatives."

Related: US Immigration Agents Are Rounding Up Central American Families

Immigration experts were not surprised that the Supreme Court decided to hear the case, but they told VICE News that the timing was critical to ensuring that the court's decision was impactful.

"It's very important that the ruling happens during this term because the programs at the center of this lawsuit are just programs, they're not laws — so after the president leaves office those programs end," said Victor Nieblas, president of the American Immigration Lawyers Association.


Democratic candidates for president have said they will maintain Obama's reforms, while Republican candidates have generally signaled that they would do away with it.

"If the court rules positively, the administration will have six to seven months to implement these programs, and that will bring about some very favorable results for a lot of recipients," Nieblas remarked.

Still, the application process itself could take months, and its speed depends the administration's preparation for the program.

"There has to be an application, which presumably was already created by the administration but not unveiled," Nieblas explained. "After people file their applications they have to get fingerprinted, get background checks, and go through a whole vetting process, which is pretty rigorous."

Tom Jawetz, vice president of immigration policy with the Center for American Progress, a progressive nonprofit, said that the administration should dedicate its resources to the program to move the process as quickly as possible.

"This could matter for millions of American families, so it should be a priority for the administration," he said. "They were 24 hours away from beginning to implement DACA expansion when the states sued, so I'd hope they'd be prepared for this."

Watch the VICE News documentary Immigrant America: The High Cost of Deporting Parents

When the next president takes office, he or she can then decide to continue the reforms or to completely halt them, which could throw all recipients back into legal jeopardy, including the first wave of DREAM Act kids who got temporary legal residency back in 2012.

"With whatever new administration that comes in, the bigger question is how they are going to approach immigration reform," said Nieblas.

If the court rules in favor of the states, not only would it affect millions of undocumented individuals — it would potentially reshape the future of presidential power. The executive branch has extensive discretion in the enforcement of immigration law, but a decision against the administration could severely limit the president's ability to act broadly in such matters. It could even prompt states to begin creating their own immigration laws, Nieblas said.

Cornell University law professor Stephen Yale-Loehr suggested that a ruling against the administration would stymie executive actions of all kinds.

"The court's holding in June could affect more than just the president's power to change immigration policy without going through Congress," he wrote in an email. "The court's decision could redefine the balance of power between Congress and the president."