Supreme Court to Hear Administrative Amnesty Case

By Jon Feere, January 19, 2016

The Supreme Court has announced that it will hear the 26-state challenge to Obama's DAPA amnesty for illegal aliens who have U.S.-citizen or permanent-resident children. It is anticipated that arguments in United States v. Texas will likely take place in April, with a ruling likely in June. This timeline assures that immigration will remain a key issue in the presidential campaign.

The State of Texas et al. submitted a brief in opposition to the Supreme Court taking up the case, noting that "the case remains in a preliminary, interlocutory posture" and that there is not a circuit split. In other words, Texas preferred that the Court reject hearing the case until a full trial on the merits could be held in the lower courts. But Texas also argued that if the Supreme Court were to grant review, "it should affirm the injunction and uphold the separation of powers" as it has before in the seminal Youngstown steel case.

On the other side, the Obama administration argued in their brief in favor of the Supreme Court taking up the case because the Court had previously "decided Arizona v. United States, 132 S. Ct. 2492 (2012), on review of a preliminary injunction ... and the justifications for doing so [in the DAPA case] are stronger." The administration also argued that waiting for a lower court to hold a hearing on the merits "would indefinitely prolong the disruption of federal immigration policy and would continue to deprive millions of parents of U.S. citizens and permanent residents of the opportunity for deferred action and work authorization."

Additional proceedings and orders are available on ScotusBlog. A reporter for that site notes that there is a "rather unusual aspect of the case" in that, although the lower courts "had not decided a constitutional question the states had raised", in taking the case the Supreme Court justices added a constitutional question on their own, namely "whether the [DAPA] policy violates the constitutional clause that requires the president to 'take care' that the laws passed by Congress are faithfully executed."

So though the administration may be pleased that the Supreme Court agreed to take up the case, the Court is now likely going to look at the constitutional question, something that the administration did not necessarily want — they would have preferred that the Court strike down the lower court ruling based on the narrow question of whether the states had standing to sue in the first place.

As illustrated in the map below, a total of 38 states have weighed in on the issue: 26 have joined against the Obama administration and 12 have filed briefs in defense of the administration.

Map Updated on 4/14/16

CIS Executive Director Mark Krikorian weighs in on the political implications of the case at National Review: Supremes to Hear Amnesty Case.