Newspaper article The Christian Science Monitor

The Big, Overlooked Question in Supreme Court Immigration Case

Newspaper article The Christian Science Monitor

The Big, Overlooked Question in Supreme Court Immigration Case

Article excerpt

For many Americans, the most immediate concern about the case the Supreme Court heard on Monday is what effect it will have on President Obama's attempt to reform United States immigration law and provide relief to more than 4 million undocumented immigrants.

But should the shorthanded court arrive at a decision, the case could have a much more far-reaching impact: It could exacerbate Washington gridlock by paralyzing federal agencies or opening them up to endless lawsuits from the states.

Experts say the case has the potential to dramatically redefine how federal agencies enforce US law. On one extreme, a decision could enable federal agencies to enact sweeping new regulations without much public or judicial oversight. And on the other, federal agencies could become so limited in how they operate that the entire US bureaucracy almost shudders to a halt.

"If [this case] gets to the merits," says Cary Coglianese, a professor at the University of Pennsylvania Law School and an expert on regulation, it will raise "a vital set of questions about the power that regulatory agencies can wield through their [enforcement] discretion about who to target and who not to."

The power of 'guidance'When Congress failed to pass comprehensive immigration reform in 2013 and 2014, Obama issued a pair of executive orders to provide relief to more than 4 million undocumented immigrants, by making them low priorities for deportation and giving them access to renewable work permits.

Jeh Johnson, head of the Department of Homeland Security, announced the two policies in an internal memorandum, commonly called a "guidance document," that isn't subject to mandatory public comment or judicial review. Because the DHS has enforcement discretion over deportation procedures, he said the agency could choose which immigrants to prioritize and which not to.

But 26 states sued over the two policies, and a federal judge - and then a federal appeals court - upheld their challenge that the DHS had overstepped its regulatory bounds with the policies, essentially creating new immigration laws. A preliminary injunction went into effect, and to this day the two executive orders have never been implemented, while the case, United States v. Texas, has wended its way to the high court.

There is a significant question mark over whether the court will issue a decision on the case's merits. Much of Monday's arguments focused on whether the states even have standing to bring the lawsuit in the first place.

The states argue, and the lower courts have upheld, that they can sue because the immigration policies would cause injury to at least one of them - in this case, Texas, which says it would be forced to pay for hundreds of thousands of new drivers licenses for undocumented immigrants. The Obama administration argues that the harm is injury is self-inflicted, as Texas is not obligated to provide drivers licenses to the undocumented.

But if the court does agree that the states have standing, experts say that alone could have significant implications for federal agencies. "If the court does accept the standing here, there is a risk that it will afford states many, many more opportunities [to sue]," says Dr. …

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