By Joe Guzzardi
February 8, 2016
As expected, the Supreme Court announced that it will hear the case that challenges President Obama executive action which grants temporary legal status to nearly five million illegal aliens. News wires were flooded with stories about Obama’s deferred action program that will shield parents of American citizens and legal permanent residents from deportation, the so called DAPA program.
But make no mistake. Lower courts had ruled that Obama could continue to deport or not deport as he sees fit. The Supreme Court will decide whether the President has the authority to grant work permits, and confer benefits like social security numbers and entitlements without congressional approval. DAPA has been on nationwide hold since November 2014 when a Texas federal judge ruled that the administration does not have the authority to act on its own, a decision that an Appeals Court upheld in 2015.
In April, the justices will consider whether states 1) have legal standing to challenge the deferred actions grants that provide employment authorization and other benefits to illegal immigrants, 2) whether under federal law Obama’s 2014 actions were arbitrary and capricious, and 3) whether the administration was obliged to post a formal notice-and-comment period before proceeding, a mandatory procedure it ignored.
To the White House’s disappointment, the justices tacked on a fourth question: did Obama’s actions violate a constitutional provision that directs him to “take care that the laws be faithfully executed.” In other words, the Supreme Court wants answered whether existing federal law bars Obama from imposing the non- enforcement changes he sought. Did Obama, in apparent pursuit of his legacy, disobey the law?
The Texas-led, 26-state coalition that brought the original lawsuit contends that Obama violated his duty to "take care." Instead, Texas claims that Obama’s executive actions are tantamount to an unconstitutional power grab that violate the Constitution’s separation of powers. In his statement, Texas Attorney General Ken Paxton said: “The Court should affirm what President Obama said himself on more than 20 occasions: that he cannot unilaterally rewrite congressional laws and circumvent the people’s representatives.”
The outcome may hinge on the separation of powers issue. Stephen Legomsky, a Washington University, St. Louis law professor and former U.S. Citizenship and Immigration Service chief counsel said: "If it were clear that there were five justices to rule for the [federal] government on standing, they would probably not go to the constitutional issue."
Predicting the result is impossible. Four liberal justices could uphold the administration, and four conservative-leaning justices could reject the White House’s arguments. University of Wisconsin law professor Ann Althouse speculates that Justice Anthony Kennedy might cast the deciding vote, but warms that an unanticipated Obamacare-type shocker could be handed down in late June when the landmark decision comes out.
As the presidential debates and primaries move forward, the Supreme Court’s deliberations will create more furor over immigration. If Obama prevails, only about six months will remain in his presidency to set up DAPA’s mechanics. Since an incoming president can void his predecessor’s executive actions, which most Republican candidates vow to do, Hispanic advocacy groups worry that few will apply for the program.
For unemployed and underemployed Americans, the stakes are high. More than 90 million Americans are detached from the labor force, a record level. Temporary employment has surged as more and more Americans can’t find fulltime jobs. Should five million previously unemployable illegal immigrants suddenly become work authorized, landing a job, permanent or temporary, would be tougher than ever.
Once, not long ago, Democrats defended American workers’ rights. During the Obama administration, however, Americans are out of favor, and play second fiddle to the President’s expansive and unconstitutional immigration agenda.
Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]