States Tell Supreme Court to Stay out of Lawsuit Challenging Obama’s Executive Actions on Immigration

Texas and 25 other states filed a brief Tuesday urging the Supreme Court to stay out of their lawsuit challenging the Obama administration’s executive actions on immigration. The Obama administration has asked the Supreme Court to decide by June whether a federal appeals court in New Orleans erred in blocking implementation of those executive actions, which could affect millions of undocumented immigrants. The court’s term ends in June. The justices’ decision could determine if President Barack Obama gets to implement the deferred-deportation program (DAPA) that was announced in November 2014, before he leaves office.

Texas, leading the challenge, asked the justices to decline to review the case for several reasons. The states argue in part that Congress is the branch to make changes to immigration policy. The Obama administration’s “asserted justification for review — that DAPA is an important new federal program — is at odds with their own submission that DAPA is merely a general policy statement advising the public of the Secretary of Homeland Security’s tentative intentions,” Texas wrote in the brief. “In reality, of course, DAPA is a crucial change in the nation’s immigration law and policy — and that is precisely why it could be created only by Congress, rather than unilaterally imposed by the executive,” the brief stated. The Supreme Court also could decline to hear the case if the justices decide that the US Court of Appeals for the Fifth Circuit correctly rejected the government’s “sweeping and unprecedented assertion of executive authority,” the brief stated

Texas also argued that no other appeals court decision differs from the Fifth Circuit’s, so there is no split that justices look for when deciding whether to hear a case. In November, a three-judge panel for the Fifth Circuit, in a 2-1 decision, declined to lift an injunction issued by U.S. District Court Judge Andrew Hanen that prevents the implementation of the executive actions. The injunction keeps the status quo until the legal challenge from the states — which claim Obama does not have the authority to take the actions — is finally decided.

The brief also argued that the immigration overhaul, which the president announced in November 2014, did not go through the notice and comment procedures required for major rule changes by government agencies. “The Fifth Circuit’s decision is correct,” the brief said, adding that blocking the president’s immigration plan is “necessary to uphold the separation of powers and ensure the proper functioning of the administrative state.”

The administration’s actions would grant deferred deportation for parents of US citizens and legal residents and expand on the deferred deportation program the Obama administration created in 2012 for immigrants who came to the United States as children, called DACA. The Supreme Court agrees to hear a case if four of the nine justices vote to do so. The justices are expected to meet privately in the first few weeks of 2016 to decide whether or not to hear the case.