The Supreme court has once again stepped into the fire of hot-button political issues. The court said Tuesday it would rule by summer on the legality of President Obama's executive action granting temporary legal status to as many as 4.5 million people who entered the U.S. illegally.
Fourteen months ago, Obama, frustrated by Congress' inability to act on immigration reform, issued an order expanding temporary legal status for some adults who entered the U.S. illegally.
The new order granted temporary legal status and work permits to illegal adult immigrants who had been in the U.S. for five years and who have children who are American citizens or lawful permanent residents. In addition, applicants had to register, pass a criminal background check, and prove they had paid their taxes. If they met all these criteria, they would be granted legal status and temporary work permits for three years.
The president said this change in immigration regulations would allow people to "come out of the shadows and get right with the law."
The president's action followed a similar temporary reprieve from deportation that he issued in 2012 for children age 15 and under brought to the U.S. illegally. Court challenges to that order failed.
Although many Republicans objected to the 2012 action for children, opposition was relatively muted. The most recent temporary reprieve for adults, however, infuriated the GOP.
Republicans blasted the president's action as "lawless," and a coalition of 26 states led by Texas challenged the executive action in court, contending that the president had exceeded his authority.
A year ago a federal judge blocked implementation of the new regime and a federal appeals court panel, by a 2-1 vote subsequently upheld the injunction on broader grounds. The Obama administration then asked the Supreme Court to review the case, and on Tuesday the justices said they would hear arguments in April, with a decision expected by late June.
If the court had refused to hear the case, the appeals court ruling would have stood, and the president's program would have been dead in the water.
But there is no assurance of how the court will rule. Indeed, the justices broadened the scope of the case, asking the two sides to address an additional, and fundamental question: whether the president's action violates the Constitution's requirement that the president "shall take care that the laws be faithfully executed."
The addition of that question is seen as "a good omen" by many conservatives, like Jay Sekulow of the American Center for Law and Justice. "I think the adding of that question ... helps those of us that are concerned that the president overreached here," Sekulow said.
He is filing a brief opposing the president's action on behalf of 88 congressmen and 25 senators, including the two Texas senators, Ted Cruz and John Cornyn. Dozens of other groups, on both sides, are expected to weigh in.
Marielena Hincapié, of the National Immigration Law Center notes, for instance, that President Obama's immigration action is similar to those "used by every administration, both Republican and Democrat, since President Eisenhower.
Duquesne Law School Dean Kenneth Gormley, author of a new history of presidential power, observes that "There have been battles over these issues dating back to George Washington." In this case, he views the states' case as "particularly weak" because in general the Constitution leaves questions of immigration and naturalization to the federal government so that the nation has a uniform system.
Gormley sees "the real battle lines" in the case as "between President Obama and Congress" and the critical question as whether the President exceeded his power under congressional enacted statutes.
For those charged with carrying out immigration laws — many of which are in fact presidential actions — the critical question may be the first one presented in the case: whether Texas has the legal standing to sue in the first place.
In order to have such standing, a state has to show that it would be injured in a concrete way if the president's action were to be carried out. Texas asserts, and the appeals court agreed, that it would be injured because it would have to spend millions of dollars to provide drivers' licenses for immigrants with temporary legal status as a result of the federal program.
The Obama administration counters that there is no requirement that Texas provide licenses at a financial loss and that the state is free to charge the full cost of the license.
It may seem like nitpicking to some, but Stephen Legomsky, a former top immigration official, says that if any state can challenge an executive action on immigration, "the result would be that practically any favorable decision by the federal government on an immigration matter would give rise to lengthy lawsuits." That, he said, would be "a recipe for a government paralysis."
The addition of the U.S. v. Texas case to the Supreme Court docket this term means that just as the two political parties are about to choose their presidential nominees, the High Court will be deciding cases involving race and affirmative action, abortion, birth control, and now, immigration.
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