Supreme Court will review Obama’s immigration executive actions

Daily News Article — Posted on January 20, 2016

(CBS News) – The U.S. Supreme Court has agreed to review President Obama’s executive actions from 2014 that would block up to 5 million immigrants in the U.S. illegally from being deported.

The plan has been tied up in court since 26 states, mainly led by Republicans, challenged the legality of the plan. In February 2015, a federal judge temporarily blocked President Obama’s executive actions from taking place and said the states had standing to sue. He did not rule on the constitutionality of the plan.

In November, the 5th U.S. Circuit Court of Appeals upheld the injunction blocking the administration’s immigration initiative, prompting the administration to file an appeal calling for the Supreme Court to immediately review the plans.

The case will be argued in April and decided by late June, in the midst of a heated 2016 election where immigration remains a key issue. The decision will come about a month before the party delegates gather for their nominating conventions.

The administration makes three main arguments in its appeal: the states have no right to challenge the policy in federal court; the government followed appropriate procedure; and the administration has broad discretion in the area of immigration. …

The executive actions the president unveiled in 2014 would grant a reprieve from deportation to about 5 million immigrants in the U.S. illegally and allow them to apply for a three-year work permit if they can pass a background check, register with the government, submit biometric data, and establish they are eligible for relief.

President Obama did not sign any executive orders to carry out his plans, but rather issued several presidential memoranda that establish new procedures and guidelines for the Departments of Homeland Security, Justice and Labor.

Those who could receive a reprieve if the plan is upheld include the parents of children who were either born in the U.S. or are Lawful Permanent Residents, and children who were brought into the country illegally prior to January 1, 2010, and have lived in the U.S. for at least five years. The latter category represents an expansion of the Deferred Action for Childhood Arrivals program, known as DACA, which previously required applicants to have arrived before June 15, 2007 and had an age limit.

Texas is leading 26 mainly Republican-dominated states in challenging the Democratic administration’s immigration plan for blocking almost 5 million illegal immigrants from deportation.

So far, the federal courts have sided with the states to keep the administration from issuing work permits and allowing those here illegally from beginning to receive some federal benefits.

The Obama administration said Texas and the other states don’t even have the right to challenge the plan in federal court. The lower courts decided that Texas does have the right, or standing, to sue because at least 500,000 people living in Texas would qualify for work permits and thus become eligible for driver licenses, the cost of which are subsidized by the state. “Texas would incur millions of dollars in costs,” the state said in its brief to the Supreme Court.

The justices also said they would consider whether Obama exceeded his authority under federal laws and the Constitution. …

If the justices eventually side with the president, that would leave roughly seven months in Obama’s presidency to implement his plans. …

From an Associated Press report. Reprinted here for educational purposes only. May not be reproduced on other websites without permission from CBSNews. Visit the website at cbsnews .com.

Background

ON EXECUTIVE ORDERS:

Various news reports state that President Obama signed executive orders; others refer to them as executive actions. The terms executive action and executive order are not interchangeable. The difference is:

A presidential executive order is a directive issued to federal agencies, department heads, or other federal employees by the President under his statutory or constitutional powers. Executive orders are legally binding and published in the Federal Register, though they also can be reversed by the courts and Congress.
Executive actions are any informal proposals or moves by the president. The termexecutive action itself is vague and can be used to describe almost anything the president calls on Congress or his administration to do. But most executive actions carry no legal weight. Those that do actually set policy can be invalidated by the courts or undone by legislation passed by Congress.
Executive memoranda are similar to executive orders in that they carry legal weight allowing the president to direct government officials and agencies. But executive memoranda are typically not published in the Federal Register unless the president determines the rules have “general applicability and legal effect.” (from about .com)

So how is an executive order different from a law? According to USA.gov, the federal government’s official website, “presidents use executive orders to direct and manage how the federal government operates.”

The executive order is a directive from the president that has much of the same power as a federal law. And like a federal law, Congress can pass a new law to override an executive order, subject to a presidential veto.

The Supreme Court can overrule an order in the same way it would find a law unconstitutional.

In historical terms, there have been significant decisions made via executive order or its ancestor, the presidential proclamation.

President Abraham Lincoln suspended the writ of habeas corpus during the Civil War using a presidential proclamation, and two orders comprised Lincoln’s Emancipation Proclamation.
President Franklin Roosevelt established internment camps during World War II using Executive Order 9066. Roosevelt also used an executive order to create the Works Progress Administration. (blog.constitutioncenter.org)

In December 2014, Texas and 25 other states filed a lawsuit in the Southern District Court of Texas seeking to block both DAPA and expanded DACA. The main grounds for their suit were the costs of issuing driver’s licenses and other associated costs of giving the undocumented immigrants legal status. Other issues being considered included exceeding executive power, failure to adhere to rulemaking procedures, and standing — the right of the states to challenge federal immigration policies. On February 16, 2015, Judge Andrew Hanen issued a temporary injunction blocking both programs from going into effect. (National Law Review)

Obama’s Executive Action on Immigration

After Congress refused to pass the DREAM Act at least two dozen times between 2006 and 2011, Obama decided to bypass Congress altogether and “change” the law by executive fiat.
In 2012, the administration created the Deferred Action of Childhood Arrivals (DACA), enabling 1.7 million illegal aliens under 30 years old brought to the U.S. as children to apply for work authorization and deferred deportation. Then, in 2014, DACA was expanded by, among other things, eliminating the age cap and increasing the term of deferred action and employment authorization from two to three years.
The administration also created DAPA, conferring deferred action on illegal aliens whose children are U.S. citizens or lawful permanent residents, provided no other factors make deferred action inappropriate. In addition to lawful presence, DAPA grants deferred-action recipients benefits such as work authorizations, driver’s licenses, Social Security, and other government benefits, costing an estimated $324 million over the next three years, according to the district court.
Texas and 25 other states challenged DAPA, alleging that it violates the Constitution’s Take Care Clause and the Administrative Procedure Act (APA). A federal district court held that DAPA violated the APA’s notice-and-comment requirements and preliminarily stopped the Department of Homeland Security from implementing “any and all aspects or phases” of DAPA. Earlier this year, the Fifth Circuit denied the United States’ request for an emergency stay.
In November 2015, the appeals court upheld the district court’s preliminary injunction, finding that Texas has standing to sue, and the states established a substantial likelihood of success on their claims that DAPA violated the APA. The court did not rule on the constitutional issue.
The court found that Texas has standing to sue—meaning it has an injury that is “fairly traceable” to DAPA—because DAPA would enable at least 500,000 illegal aliens to receive subsidized Texas driver’s licenses, at a cost of $130.89 per license, which would end up costing the state millions of dollars. While the administration asserted that DAPA beneficiaries would then generate income for Texas by registering their cars and buying car insurance, the panel refused to accept this because “[w]eighing those costs and benefits is precisely the type of ‘accounting exercise,’ in which we cannot engage.” (from theDailySignal)

CHALLENGE: On Executive Orders (from wikipedia):

There is no constitutional provision nor statute that explicitly permits executive orders. The term executive power Article II, Section 1, Clause 1 of the Constitution, refers to the title of President as the executive. He is instructed therein by the declaration “take Care that the Laws be faithfully executed” made in Article II, Section 3, Clause 5 or face impeachment.

Most executive orders use these Constitutional reasonings as the authorization allowing for their issuance to be justified as part of the President’s sworn duties, the intent being to help direct officers of the U.S. Executive carry out their delegated duties as well as the normal operations of the federal government: the consequence of failing to comply possibly being the removal from office.

An executive order of the president must find support in the Constitution, either in a clause granting the president specific power, or by a delegation of power by Congress to the president.

Considering this, do you think President Obama has the Constitutional authority to bypass Congress to issue executive actions on immigration? Explain your answer.