In November, 2014, President Obama announced executive action related to immigration. The action, Deferred Action for Parents of Americans (DAPA), defers deportation proceedings for qualified parents of U.S. citizens and lawful permanent residents for at least three years. The action also expanded Deferred Action for Childhood Arrivals (DACA) to include individuals who entered the U.S. before 2010. (The original policy, enacted in 2012, only impacted individuals who entered the country before 2007. The original policy has not been challenged in Court.) Soon after the announcement, Texas and 17 other states filed suit in federal court, seeking to enjoin, or block, the implementation of these policies. A federal judge in Texas, followed by a divided Fifth Circuit Court of Appeals, issued and upheld, respectively, a preliminary injunction. This halted the performance of DAPA and the expansion of DACA. The courts held that (1) Texas has standing to bring the lawsuit and (2) has a likelihood of success on the merits of the lawsuit. The narrow procedural ground on which the courts concluded a likelihood of success was based on the government’s alleged failure to comply with certain requirements of the Administrative Procedure Act (APA), specifically the “notice and comment” rulemaking. However, when the Supreme Court of the United States agreed to review the case, it took the unusual step of asking for additional briefing on the constitutional question of whether DAPA violates the “Take Care” Clause in the U.S. Constitution. Specifically, the Supreme Court ordered the President to justify DAPA and prove that his executive action is consistent with congressional intent and does not create new law. The first is within the Take Care Clause of the Constitution, while the second would violate the Constitution.
The real issue before the Supreme Court is whether DAPA or the expanded DACA violates the “Take Care” Clause in the Constitution. Article II, Section 3, Clause 5 of the U.S. Constitution simply provides that the President, “…shall take Care that the Laws be faithfully executed…” The clause was designed to ensure that laws are dutifully or “faithfully” executed by the President, even if he disagrees with the purpose of that law. It requires the President to obey and execute the laws passed by Congress. However, the President possesses wide discretion in deciding how and even when to enforce laws. Absent specificity in the law or clarification by the courts, the President also has discretion in interpreting the meaning of the laws he must execute. What does this mean as applied to DACA?
The crucial finding will be either that Congress gave the executive branch a good deal of flexibility on how to enforce the immigration law so that deferred deportation is “faithful” to the law, or that Congress made its intent very clear so that little was left to executive discretion, and deferred deportation is “unfaithful” to the law, and thus invalid under the Take Care Clause. In other words, the Court could view DAPA as a new law created by the President, or it could view DAPA as the President’s decision on how to enforce (or not enforce) laws created by Congress.(Despite asking for briefing on this issue, it is possible that the Supreme Court will decide the case on procedural or other grounds, such as deciding that Texas does not have standing to sue. If the court does get to this constitutional issue, the Justices very likely will provide a full explanation of what the Take Care Clause means, which would be a first in Supreme Court history.)
In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. Further, in the last 60 years, every president has granted some form of immigration relief, without a question as to whether he violated the Take Care Clause. In United States v. Arizona, the Supreme Court looked at the issue of the federal government’s power over immigration policies. Although it was not analyzed in the context of the Take Care Clause, the majority opinion may shed some light on how the Court might decide this case. Justice Kennedy wrote,
“Removal (of undocumented immigrants) is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all….Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.”
It should also be noted that Justice Kennedy wrote the decision for a 5-3 Supreme Court, as Justice Kagan had recused herself from participating in the decision. The dissenters were Justices Scalia, Thomas and Alito. This balance would tend to bode well for the current eight member Court to decide in favor of the President’s power to enact DAPA.
Twenty-five states have joined Texas in opposing the implementation of DAPA. Fifteen states and the District of Columbia support its implementation. On April 18, the Court heard oral argument in this case. The justices sometimes provide clues about which way they are leaning, based on the types of questions they ask, and who they ask. During oral argument, the Court’s “conservatives” and “liberals” seemed divided. The liberal justices, including Justice Ginsburg, Justice Kagan, and Justice Breyer, questioned whether Texas has standing to seek an injunction in the first instance. Justice Sotomayor also took issue when the Solicitor General from Texas called President Obama’s action “unprecedented”. The conservative justices, including Chief Justice Roberts and Justice Alito, were more focused on the language of the action, which refers to the beneficiaries of the program as being “lawfully present” in the United States, but still in violation of immigration law. (Justice Thomas was, typically silent, but usually sides with the other conservative justices.) Of most concern to the survival of the program was questioning from Justice Kennedy, who is seen as a “swing” vote. He seemed concerned that the President is expanding immigration policy on his own and asking Congress to join him. He pointedly said, “That’s just upside down.”
If the Court upholds the decision of the Fifth Circuit Court of Appeals, or is divided 4-4, the ruling from the Texas Court will stand, and DAPA will not take effect. If the Court reverses the decision, or decides that Texas did not have standing to sue in the first instance, the executive action can move forward and have a positive impact on the almost 4.3 million undocumented parents of U.S. citizens and lawful residents. However, if the Republicans win back the White House, reversal of President Obama’s action would be imminent. Since the Supreme Court’s decision would not be handed down until approximately June, 2016, most people would likely wait until after the presidential election in November before they seek relief under DAPA. (If the Court is divided 4-4 on the issue of executive power and the Take Care Clause but wants to avoid another 4-4 decision on a major issue, one or more of the conservative justices might side with the liberal justices on the standing issue, thereby sidestepping the bigger question on the Take Care Clause.)