January 22, 2016
The case is the result of 26 states challenging the Obama administration’s 2014 executive orders on immigration, which specifically would allow over4 million individuals who are parents of U.S. citizens and legal permanent residents to remain in the country for three years or longer, without the threat of deportation. Once they are allowed to stay, they may qualify for work permits and other public benefits.
In agreeing to review the case, the Court presented four questions for the parties to address:
- Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
- Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
- Whether the Guidance was subject to the APA’s notice-and-comment procedures.
- Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3
There’s quite a bit loaded into those four issues, so let’s unpack them .
The first question merely asks whether the states have standing to challenge the executive action. According to the states, their legal injury – a basic standing requirement – is that they would have increased costs because of those allowed to remain in the country. On this issue, the lower court found that Texas specifically would have standing (only one state needs to have standing for the case to proceed) because it would incur increased costs due to providing driver’s licenses to those individuals in question.
The government has countered that it was Texas’s own decision to allow certain immigrants to apply for driver’s licenses, and that the new federal policy doesn’t affect that in any way. Moreover, according to the government, states don’t typically have standing to challenge the manner in which the federal government executes its laws, which is all that it is doing with its immigration action.
The second question, along with the third and fourth, only apply if the Court finds that the states have standing. That question gets to the heart of the legality of the administration’s actions. Specifically, whether the executive has the authority to take the action it did through the mechanisms that it did. If the Court limits the administration’s authority in any way, it could open the door to lawsuits challenging the validity of a number of Obama’s executive orders – not to mention actions taken by future administrations.
The third question reaches a similar issue: whether the administration’s actions were subject to the APA’s procedures that require the executive to notify the public about and allow it to comment on proposed administrative actions. While such a resolution in the affirmative by the Court wouldn’t necessarily stop the administration from taking such actions, it would add additional hurdles that may make such action difficult – sometimes prohibitively so.
The final question was added by the Court itself: whether the guidance violates the Constitution’s little known “Take Care” Clause – which mandates the executive to “take care that the laws be faithfully executed.” Although the Court did indeed add this question in itself, such an act shouldn’t be read too much against the administration, since the issue was raised in the lower court and it was likely added by the Supreme Court to ensure that any decision reached in the case were comprehensive.
How the Court rules in this case will obviously have a significant impact on presidential powers, and may lead to challenges of other executive actions taken by President Obama. Moreover, a limiting of executive authority may severely hamper the authority of the executive branch at large, instead putting more power in the hands of Congress.
But aside from the political and legal impact of the case, there’s also a significant social one: there are over four million individuals whose lives could be drastically affected by this ruling. And it would be foolish to believe that the humanitarian effects of a ruling wouldn’t sway the Court’s decision in any way.
We’ll have better insight into the way the Court is leaning on this case after oral arguments in late April, and considering the high stakes attached to the case, we’ll definitely be following up after the justices have aired their thoughts from the bench.