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Supreme Court Puts Itself in the Middle of Immigration Debate

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By Casey C. Sullivan, Esq. on January 19, 2016 1:04 PM

The Supreme Court agreed to hear a challenge to President Obama's executive actions on immigration on Tuesday. The case involves a challenge by 26 states, led by Texas, to the President's plans to halt deportations for millions of immigrants, including the undocumented parents of U.S. citizens.

In granting cert to United States v. Texas, the Supreme Court also ensured that it will play a major role in the debate over immigration in America. Oral arguments are scheduled for April with a decision likely to come in June -- right in the middle of what is sure to be a frenzied presidential campaign.

Looking Beyond the Standing Question

The case involves a challenge to President Obama's Deferred Action for Parents of Americans and Permanent Residents program. DAPA was instituted after immigration reform failed (spectacularly) in Congress and instructs U.S. immigration authorities to refocus their deportation efforts on undocumented immigrants with criminal records and reconsider deportations for the non-American parents of Americans.

Texas and 25 other states sued, arguing that DAPA exceeded the executive branch's authority to change immigration policy through executive order and violated the notice and comment requirements of the Administrative Procedure Act. The District Court of the Southern District of Texas enjoined the government from implementing DAPA, an injunction the Fifth Circuit upheld last November.

The U.S. government had asked the Supreme Court to consider whether the states had standing to challenge DAPA and, if so, whether DAPA was subject to or violated the APA. The Justices, however, added a question proposed by the states: whether DAPA "violates the Take Care Clause of the Constitution."

It's unusual for the Court to raise an issue that both the district and circuit courts had avoided addressing. Adding a third question presented raises the possibility that the Court could issue a decision with reach far beyond DAPA.

Perfectly Timed for Politics, Controversy

The cert grant puts the Court in the middle: in the middle of the immigration debate, in the middle of an election year, and in the middle of presidential campaigns that have already heavily focused on immigration.

A finding that the states don't have standing to sue, or that the lower court's injunction was inappropriate, would allow DAPA to finally be implemented. Alternatively, the Court could find that the Obama Administration not only violated the APA, but the Constitution, sending immigration reform back to the drawing board.

Either way, if the Court's decision isn't political, it's surely going to be politicized, used to fire up the bases of both the Democratic and Republican nominees, whoever they end up being.

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