What is at stake with United States v. Texas?

April 20, 2016

Guest blogger: Victor Ng, second-year law student, University of San Francisco

On Monday, April 18, 2016, the Supreme Court heard oral arguments for United States v. Texas, No. 15-674. This case concerns whether President Obama has the authority via executive order to allow undocumented immigrant parents of citizens or lawful permanent residents to apply for Deferred Action for Parents of Americans and Lawful Permanent Residents, more commonly known as DAPA. DAPA would allow these parents to obtain work permits and stop them from being deported.

Here are some ways this could play out.

The Justices Agree President Obama Acted Within His Authority

If a majority of the court decides that President Obama acted within his authority, the executive order stays. In other words, DAPA would be in place and expansion of benefits to undocumented immigrants would be permissible. But what it also really signals is the power the president has over such immigration matters. It leaves more room for the president to act pursuant to his/her constitutional authority—implied or explicit. This, however, also is a double-edged sword. If a pro-immigrant president were elected, that power would be exercised toward the undocumented immigrant’s favor. However, if a president with less sympathetic view is elected, not only could executive orders signed by previous presidents be revoked, but harsher orders could also be issued and more likely survive constitutional challenges.

The Justices Deem President Obama Acted Outside of His Authority

If a majority is reached that President Obama acted outside of his authority, this could have adverse impact beyond DAPA. The legality of other immigration reliefs such as DACA and H-4 EAD through the president’s executive order also could be challenged on similar grounds. Parties with less friendly immigration views are likely to succeed challenging the president’s executive orders on immigration.

Split Between the Justices

Numerous news outlet and legal analysts predict that this is most likely a 4-4 decision. If it is a 4-4 decision, the lower court‘s decision stays. This issue can be brought up again once the Supreme Court has 9 justices. In this scenario, the future of undocumented immigrants would depend on a few key events such as the nomination and confirmation of a new justice to fill the current vacancy in the Supreme Court, the presidential election, and congressional elections.

With the current Republican led congress, no significant immigration reform has passed. According to Ballotpedia, “a total of 469 seats in the U.S. Congress (34 Senate seats and all 435 House seats) are up for election on November 8, 2016.” If the Democratic Party is able to achieve majority in the house and senate, meaningful immigration reforms through legislature is more likely to pass, if a democratic president were elected. Such legislative reform is more likely to withstand constitutional challenges since “the Supreme Court has declared unequivocally for over a century that the federal government has the exclusive power to make and enforce [immigration] law.”

Further, if a democratic nominated Supreme Court justice with views similar to Justice Ginsburg, Justice Sotomayor, Justice Breyer, and Justice Kagan is confirmed by a democratic controlled senate, DAPA may be ruled a constitutional exercise of the president’s power.

Last, it is also important to consider how the presidential primaries will play out and how the Supreme Court nomination might be used as a campaign tool and thus impact immigration. For example, if Donald Trump wins the GOP nomination, he has expressed that he would nominate a Supreme Court justice on the conservative side. He would use this as a selling point for his campaign to generate votes. The GOP has two options. They could either go with Trump’s potential nomination, or confirm Judge Garland, who is known as a “moderate” to mitigate their risk. Or, alternatively, if Hillary Clinton is the democratic nominee, the GOP might confirm Judge Garland soon after the elections to avoid the possibility of having a justice that’s even more liberal should the GOP lose the presidential election.

This is by no means an exhaustive list of possibilities. The Supreme Court might even decide that the states have sustained no injury and therefore do not have standing to bring this case in federal court, and thus side stepping the immigration issue. Whatever the outcome, it appears that the elections and Supreme Court nomination also will have immediate impact on DAPA.