The nation’s high court on Tuesday gave the Obama administration the chance to defend its “deferred action” programs for immigrants even as the justices gave the boot to a head-on challenge to them by Maricopa County Sheriff Joe Arpaio.
In the first order, the U.S. Supreme Court voted to review the decision of a federal judge in Texas that the president and his Department of Homeland Security had acted illegally in deciding that some people who were in this country illegally could stay without fear of deportation. That judge said the administration did not follow the legal requirements for enacting regulations.
Separately, the justices refused to resurrect a challenge by Arpaio to the Obama administration’s deferred action programs. Without comment, the justices let stand a ruling last year by the Court of Appeals for the District of Columbia that the self-named “toughest sheriff in America” had no right to sue.
In that ruling, appellate Judge Nina Pillard said the sheriff’s lawsuit is based on the contention that allowing people who arrived in this country illegally as children to remain without fear of deportation will lead to more crime in Maricopa County and burden his officers and jails. But Pillard, writing for the three-judge panel, said the sheriff’s contentions “are unduly speculative” and “rest on chains of supposition and contradict acknowledged realities.”
And without any proof he or his agency will be harmed, Pillard said there was no basis for a lawsuit.
The lawsuit, filed in 2014, challenges three deferred action programs which would allow millions of people here illegally both to remain and work.
That includes the original Deferred Action for Childhood Arrivals program implemented in 2010. At last count, nearly 800,000 requests to remain and work had been approved nationwide, including more than 28,000 in Arizona.
Arpaio charged that the programs are “unconstitutional abuses of the president’s role in our nation’s constitutional architecture, and exceed the powers of the president within the U.S. Constitution.” And he said even if Congress has granted some power to the president to decide how to enforce immigration laws, these two programs exceed that delegated authority.
But the court never addressed those arguments, saying Arpaio has no legal right to even make them.
That leaves the challenge by Texas and other states, including Arizona, to the other two programs: an expanded DACA and a new Deferred Action for Parents of Americans aimed at helping illegal immigrants who are the parents of children in this country legally.
All three programs are built on the administration’s arguments that it lacks the resources to find and deport the estimated 11 million people not in this country legally. So the Department of Homeland Security decided to let some people stay and work, saying that allows federal agents to concentrate on finding criminals who are here illegally.
Overall, estimates are that if the high court upholds the legality of those programs, too, it ultimately could result in four million people being allowed to stay.
In filing suit, the states did not challenge the ability of the Department of Homeland Security to decide who it pursues for deportation. But they argued those decisions need to be made on a case-by-case basis.
By contrast, they said what the president has enacted amounts to a wholesale policy change. And that, challengers said, amounts to a policy change.
In February, U.S. District Court Judge Andrew Hanen agreed, saying if the administration wants to do that it has to go through a full-blown rule-making procedure, something it did not do. He enjoined the administration from pursuing the expanded DACA and new DAPA programs.
In a split decision, the 10th U.S. Circuit Court of Appeals upheld that decision, going farther and concluding the president’s actions were illegal.
But while agreeing Monday to hear the administration’s appeal, the justices may have thrown an impediment into the president’s path.
They said they want to be briefed on whether the policies violate a constitutional requirement that “the laws be faithfully executed.” That goes to the question of whether the administration can simply decide not to enforce laws against people who, legally speaking, have no right to be in this country.
The high court could hear arguments as early as April, potentially reaching a decision just a month before the presidential election.
That timing has interesting political implications.
All three programs are effectively administrative actions. More to the point, they could be rescinded by whoever succeeds Obama in the White House, something most of the Republican presidential contenders have vowed to do.
But if the justices find the actions legal — and hundreds of thousands of more people qualify to stay — that could create political pressure on the next president to leave the programs intact.
In a prepared statement, attorney Larry Klayman who represented Arpaio said he and the sheriff were “disappointed” the justices did not take up their case. But Klayman said Arpaio’s views still will be considered through an amicus brief to be filed with the high court in the Texas case.
Klayman, founder and attorney for Freedom Watch Inc., also took a slap of sorts at the justices for ignoring Arpaio’s arguments and instead focusing on the case brought by the states.
“More establishment-type Republicans on the court seem to focus more on working with state governments rather than a maverick like Arpaio,” Klayman said in his statement. But he said if the justices side with Texas and the other states, that would “provide the same relief that Arpaio asked for.”