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Obama Seeks Dramatic, Last Minute Review of Immigration Plan

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By Casey C. Sullivan, Esq. on November 12, 2015 12:58 PM

On Monday, the Fifth Circuit struck down President Obama's immigration plan. That plan, which would halt many deportations and provide work permits to five million undocumented immigrants, exceeded the authority of the Executive branch. Now, the President is seeking Supreme Court review, setting up the Court up for a potentially dramatic ruling next June, on the eve of Democratic and Republican parties' nominating conventions.

Will SCOTUS take the bait?

President Obama's Long-Paused Immigration Reform

When immigration reform died in Congress in 2013, President Obama pledged that he would take matters into his own hands. Thus was born the Deferred Action for Parents of Americans program, which sought to provide a path to citizenship for many undocumented immigrants and to focus deportation and enforcement actions on those with criminal records.

But President Obama has never seen his plan put in to action. Before his reforms could go into effect, 26 states sued, with Texas at the lead, arguing that the DAPA violated the public notice and comment procedures of the Administrative Procedure Act. Further, they argued, the Obama administration had overstepped its authority by dramatically changing the ways immigration laws were enforced -- without any direction from Congress. An injunction has prevented the plan from being implemented ever sense. On Monday, the Fifth maintained that injunction, holding that the President was unlikely to succeed on the merits.

The administration had earlier complained about how long it was taking the Fifth Circuit to issue a decision. Now, however, they'll be able to petition for cert just in time to see a (potential) ruling on the program while President Obama is still in office.

The Perfect Timing -- for Controversy

If the Supreme Court grants cert, that could set the Court up for a dramatic, end-of-term ruling, reminiscent of last term's pivotal decisions on same-sex marriage and Obamacare. Except, unlike those rulings, any decision on DAPA would come at the height of electioneering frenzy. Both Republican and Democratic parties would be on the verge of holding their nominating conventions and, if current politicking is any indicator, immigration would remain a major, contentious issue. Any ruling, whatever it may be, would likely galvanize Hispanic voters, who tend to vote Democratic.

Of course, the timing is also about President Obama himself. If the Supreme Court takes the case and allows the program to go forward, it will vindicate immigration reform that the President has long sought and which he views as legacy-making. It would also give the administration a few short months to halt deportations and grant work permits before being replaced by POTUS 45.

More Than Just Immigration

The case would also implicate much more than immigration or the Obama administration. At its heart are questions of the executive's power to shape laws, the role of states in opposing federal actions, and the meaning of the Court's 2007 ruling in Massachusetts v. EPA. In that case, the Supreme Court ruled 5-4 that Massachusetts and 11 other states could sue the EPA in order to force it to regulate carbon pollution and greenhouse gases under the Clean Air Act.

While Mass v. EPA quickly became a landmark case in environmental and administrative law, the Court hasn't had many opportunities to revisit or reapply its holdings until now. While lower courts had been divided on whether states had standing to sue the federal government over its implementation of a law, the Court in Mass v. EPA ruled that states were entitled to "special solicitude" in a standing inquiry.

It's that solicitude and "quasi-sovereignty" that the Fifth Circuit cited when allowing the states to challenge Obama's immigration plan even though the actual harm they could suffer from it could be considered tangential and hypothetical. (Texas had complained about the costs of drivers licenses increasing because of DAPA requirements.)

At stake, too, is the role of the courts in reviewing federal policies and interpretations. If they give much weight to Mass v. EPA, it could open federal programs to increasing challenges by states in the future, and place courts as the arbiter of those often politicized disputes.

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