The Hollow Order
Rebuilding an International System That Works
In late January, the Supreme Court announced that it would hear an appeal in United States v. Texas, involving U.S. President Barack Obama's 2014 executive order that would temporarily shield nearly five million undocumented immigrants from deportation. The decision to hear the case, which was widely expected, settled a scuffle over the timing for a review of the measure, with the Obama administration asking for prompt review, so that the issue can be decided before he leaves office, and his opponents hoping to delay a decision until after Obama is gone. Now, with the decision expected by June—just as the Republican and Democratic parties are gearing up for their conventions to nominate their respective presidential candidates—immigration policy promises to remain center stage. The intended beneficiaries of the executive order, meanwhile, still live in the dark.
Obama entered office promising comprehensive immigration reform. But with that seemingly out of reach after 2013, when house Republican leaders blocked a vote on a bipartisan reform bill passed by the Senate, he looked for other options. In November 2014, Obama announced a program to defer deportation for up to five million undocumented immigrants who are parents of U.S. citizens and permanent residents under the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) andan expansion of the Deferred Action for Childhood Arrivals (DACA) for immigrants who came to the United States as children. More than 680,000 people have been granted deferred action under DACA since its inception in 2012. Neither program provides relief for recently arrived families, including the most recent wave of people fleeing Central America, since those eligible for deferred action must have been in the country for five years. Moreover, the program does not grant permanent amnesty—it only grants temporary relief to families with close ties to the United States.
The backlash to Obama’s executive order was immediate, with Republicans accusing the president of overstepping his authority and bypassing Congress. A coalition of 26 states, mostly Republican-led, filed a suit in federal district court to halt the program. Meanwhile, 15 states and the District of Columbia have filed friend-of-the-court briefs supporting the administration’s position. The administration countered that the program does not alter the law. Rather, it merely sets enforcement priorities—a discretionary function clearly within of the bounds of his authority on immigration matters. As the administration pointed out, the United States lacks resources to deport 11 million immigrants, and has prioritized accordingly, targeting felons (those eligible for deferred action must not have been convicted of any felony or of some kinds of misdemeanor) and recent arrivals. Indeed, contrary to the impression that Obama is soft on immigration, his administration has set deportation records, although the number of deportations has waned recently.
Republicans have since conceded that the president has broad authority in immigration but claim that the program is a blanket policy that amounts to a change in the law. And last February, federal court judge Andrew Hanen ruled that the Obama administration failed to comply with requirements under the Administrative Procedure Act to provide a notice and comments period for the new programs. He enjoined the programs’ implementation, preventing the administration from issuing work permits and authorizing certain federal benefits. Hanen, whose perceived hard-line stance on immigration likely influenced the plaintiffs’ choice of venue, found that Texas had standing to sue the government because it would incur the cost of providing driver’s licenses, which it partially underwrites.
For now, 11 million immigrants continue to languish in the shadows that Obama vowed to flood with light.The Obama administration appealed the decision to the U.S. Court of Appeals for the Fifth Circuit. On November 9, 2015, a year after Obama announced the program, a divided three-judge Fifth Circuit panel affirmed Hanen’s injunction. The panel went even further than Hanen, finding that Obama had exceeded his statutory authority. Obama then filed a petition with the Supreme Court on November 20, asking the justices to find that Texas lacks standing to sue, that he was authorized to set enforcement priorities, and that the order did not fall under the Administrative Procedure Act. Observers were stunned when the Court asked the litigants to provide briefs on whether the president had violated the constitution’s “take care” clause, which states that the president “shall take Care that the Laws be faithfully executed.” The move injected a constitutional question into an otherwise statutory dispute, and it is unclear which side the court’s request might benefit.
The court’s eventual decision on whether the states have incurred the sort of direct and concrete harm that gives them standing to sue will have far-reaching implications. A favorable decision for the states could expand their ability to challenge executive actions when they can argue that they suffered any adverse impact, however minor.
While the politicians and courts hash it out, though, the stakes for the affected families could be even higher. As Solicitor General Donald Verrilli has argued, if the lower court rulings are allowed to stand, they “will force millions of people—who are not removal priorities under criteria the court conceded are valid, and who are parents of U.S. citizens and permanent residents—to continue to work off the books, without the option of lawful employment to provide for their families.” Instead, they are forced to toil in positions where they are vulnerable to exploitation, and live under a cloud of foreboding, increasing instability for families at an incalculable human cost.
But even a victory for Obama could prove unsatisfying. His order can be reversed by his successor, and leading Republican candidates have been clear about where they stand on immigration: GOP frontrunner Donald Trump wants to deport all 11 million undocumented immigrants; Ted Cruz and Marco Rubio said they’d shut down the president’s programs. Rubio, in particular, has faced withering criticism from the other candidates for supporting bipartisan immigration reform in 2013, a position from which he has hastily retreated.
Meanwhile, both Democratic candidates are running to the left of Obama on immigration, with Hillary Clinton saying she’d expand the program and Bernie Sanders arguing for even broader relief. The ensuing political uncertainty leaves those tentatively eligible for relief in a tenuous position, exactly the opposite of the security that Obama’s order intended to achieve. And with a decision expected six months before Obama leaves office, it is not clear what capacity the administration will have to process applications quickly, likely leaving some applicants in limbo.
As they wait, the Obama administration has launched a crackdown on recently arrived migrants from Central America’s northern triangle (Guatemala, El Salvador, and Honduras), to deter future migrants and arguably, to bolster its credibility on enforcement as the lawsuit progresses. In early January, the Department of Homeland Security began rounding up Central American families who had been issued final orders of removal, but immigration advocates claim that many of those targeted had not exhausted their due process rights and that the administration was failing to provide protections to asylum-seekers under domestic and international law. The Board of Immigration Appeals temporarily blocked the deportation of 33 people it had recently rounded up. But the specter of raids has created a climate of fear among an already traumatized population.
Although a favorable Supreme Court decision could ensure long overdue but temporary relief, it does little to forge a long-term solution to the polarized and paralyzed immigration debate. That will be up to Congress, though it is hard to be optimistic that any real reform is in sight. In the meantime, 11 million immigrants continue to languish in the shadows that Obama vowed to flood with light.