Obama’s Immigration Day of Reckoning 

The jewel of President Obama’s efforts to remake American immigration law takes center stage at the Supreme Court Monday, with an expected summer ruling, just months from Election Day, likely to reverberate through the presidential campaign.

At issue is Obama’s executive action shielding nearly 5 million illegal immigrants from deportation. A federal judge in Brownsville, Texas, ruled that 26 states that challenged the action were likely to win and ordered a nationwide ban on carrying out the program while the case proceeds through the courts. The 5th U.S. Circuit Court of Appeals upheld that decision.

[lz_jwplayer video=”AzCoNdH5″ ads=”true”]

In an unusual move, the Supreme Court granted an expedited hearing, allowing for the potential of a sweeping ruling on the merits even before the case has been tried in lower courts. Justice Antonin Scalia’s death in February added a heightened measure of uncertainty. With the court now evenly divided between liberal and conservative justices, a 4-4 split is a distinct possibility.

“This is going to put front and center how politicized this court is” if it does divide 4-4, said immigration lawyer John Miano. “The only thing that could explain it is politics.”

Miano, who wrote a friend-of-the-court brief on behalf of a pair of clients who contend that they are hurt by illegal immigration, said he believes there is a good chance that the court is closer to unanimous than many observers think. That’s how weak the administration’s position is, he said.

[lz_third_party includes=”https://www.youtube.com/watch?v=je4CBsFg_68″]

Obama took his bold action in 2014 after years of failed attempts to get Congress to pass a comprehensive immigration reform law that would provide a path to citizenship for some 11 million or more people who sneaked into the country illegally or came legally on visas and unlawfully remained after they expired. The president also acted after publicly declaring almost two dozen times that he lacked the authority to do so.

Obama has argued that his action is merely an exercise of discretion — prioritizing dangerous and criminal illegal immigrants for enforcement over law-abiding parents of children who are U.S. citizens. The government asserted in written arguments to the court this month that the president’s action “does not confer lawful status; it provides only a non-binding, temporary reprieve as a matter of discretion. Nor is it a magnet: It reaches only aliens who have already lived here since 2010, and frees up resources for increased border enforcement.”

But Miano noted that Obama went far beyond that, taking steps — like an order to issue work permits — that Congress specifically considered and rejected.

“If the court adopts the position of the president, than America essentially has no immigration system,” he said.

Michael Hethmon, senior counsel for the Immigration Reform Law Institute, said the administration has been “very dodgy” about its authority, shifting legal arguments as the case has proceeded. He disputed the government’s argument that the statute creating the Department of Homeland Security “vested” broad discretionary powers.

[lz_related_box id=”126416″]

“It should be fairly scary to have the agency describe actual limitations in the law as permanent grants of authority,” said Hethmon, whose organization has filed a friend-of-the-court brief. “A lot of observers think it would represent a huge shift of power from the legislative to the executive branch.”

The oral arguments will be longer than normal. In addition to attorneys for the federal government and the states, the court will give time to an attorney representing the interests of the illegal immigrants and a lawyer representing the House of Representatives.

The court has several options. It could decide the case on the merits or rule on narrower grounds. For instance, it might decide that the states lack “standing” to sue because they cannot demonstrate an actual harm they will suffer because of the policy. Or the court might split 4-4. If that happens, the appellate court order would remain in place and the case would go to trial.

“Certainly on this issue, that’s not going to be the end of the matter,” Hethmon said, predicting the issue will eventually find its way back to the high court. “That seems, to me, almost inevitable.”