On Monday the U.S. Supreme Court heard oral arguments in one of the most high-profile, controversial, and important cases of the year. At issue in United States v Texas is Barack Obama’s 2014 executive action on immigration, commonly known as DAPA, which would allow unauthorized immigrants who meet certain eligibility parameters to apply for relief from deportation. As it stands, the program is on hold after a federal district judge granted a preliminary injunction last February after a coalition of 26 states, led by Texas, filed a lawsuit seeking to block the president’s action from taking effect. Technically, the question before the Supreme Court is about the injunction, which was upheld by the Fifth Circuit in November, not DAPA itself. But Obama is already in the last months of his second term as president. In practice, then, United States v Texas will effectively determine whether DAPA survives. If the Supreme Court strikes down the injunction, several million immigrants would be eligible to apply for the legal protections Obama has proposed. If not, they’re out of luck.
It’s awkward, then, that United States v Texas has been so widely misconstrued. Many media reports have summarized the case by saying that it has to do with “Obama’s immigration policy.” That’s true, in a sense, but only because the president decided to implement his immigration policy via memo. “This case is about an unprecedented, sweeping assertion of Executive power,” writes Scott Keller, the Texas solicitor general, in the state’s brief to the Supreme Court. “This case is not about the wisdom of particular immigration policies; legislators have disagreed on whether immigration statutes should be amended.”
Some readers, no doubt, won’t take the Texas solicitor general’s words at face value. And it’s hard to dismiss any such suspicions out of hand; Keller happens to have studied under that master of maddeningly plausible deniability, the diabolical Ted Cruz. But several pieces of circumstantial evidence are consistent with his assertion that the state’s lawsuit is about Obama’s executive action, not his immigration policy.
1) Texas’s lawsuit is only concerned with DAPA, which was actually Obama’s second major executive action on immigration. The first was DACA, in 2012, which exempted from deportation certain undocumented immigrants who entered the country as young children. The two executive actions are related, obviously. Among DAPA’s provisions, in fact, is an expansion of the eligibility parameters for DACA. This expansion, which is referred to as “DACA plus” or “Expanded DACA,” is laid out in Obama’s 2014 memo, and so it has not been implemented, because of the injunction of DAPA. It’s telling, then, that Texas’s lawsuit is specific to DAPA. Similarly telling is that the state didn’t sue the federal government to block DACA. If Texas’s objection was to Obama’s immigration policy, you’d have expected the state to have challenged both policies, not just DAPA.
2) Conversely, if the state’s objection is to executive action, the disjunct does make sense, due to a few practical differences in the initiatives as laid out in Obama’s memos. DAPA’s eligibility parameters are broader than DACA’s; its impact on the states, for good or for ill, would be larger. And Obama’s 2014 memo, establishing DAPA, explicitly says that immigrants approved for deportation relief would have a “lawful presence” in the country, albeit on a temporary basis. Texas’s suit against DAPA focuses on the implications of that phrase, and the Fifth Circuit, in upholding the injunction, agreed that it has “significant legal consequences.” The Obama administration’s brief to the Supreme Court is somewhat dismissive of Texas’s argument that the costs of issuing driver’s licenses to the immigrants thereby eligible to apply would add up. And to the United States solicitor general’s point, the fees Texans might pay for a driver’s license pale in comparison to the humanitarian costs our society incurs as a result of having millions of unauthorized immigrants living in the shadows. Still, it is true that DAPA’s explicit guarantees—and, by extension, the executive action’s practical implications for the states—are broader than those laid out in DACA.
3) Imagine how often Texas would sue Obama over his policy agenda, if a state could sue over a president’s policy agenda.
I occasionally encounter Democrats who seem to think that “executive overreach” is a euphemism, which conservatives have embraced rather than being honest about their desire to see Obama thwarted at every turn, regardless of what he’s trying to accomplish. Though I have no hope of convincing them on this point, I think that’s in part because Obama has encouraged the impression that such criticism is ideologically motivated. In 2014, when he announced DAPA, he described it as a “commonsense, middleground approach,” that would result in the type of reforms that most Americans would support, and which he was compelled to pursue via executive action as a result Congress’s failure to pass comprehensive immigration reform in 2013. He also asserted that the action was lawful, and issued a pre-emptive challenge to anyone who might disagree: “To those Members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill.”
Americans who share his goals might have been heartened by Obama’s determination to effect legislative change. That doesn’t have the slightest bearing on whether his efforts to do so, in this case, were constitutionally kosher. That being the case, it’s frankly somewhat invidious that the president and his supporters keep casting his decision to take executive action on immigration as something he was compelled to do by moral necessity. Perhaps he felt a genuine moral imperative to act. Perhaps his successor as president will have such feelings too. And perhaps that successor will be Donald Trump. Are we really prepared to accept Obama’s implicit argument that the constitutional separation of powers may be suspended if Congress is being ornery and uncooperative? I’m not. I find it reassuring, these days, knowing that Congress is capable of obstruction.
In any case, United States v Texas won’t settle all questions about the limits of a president’s power. A ruling in favor of Texas, or a 4-4 tie, seems like the likeliest outcome to me, but that would only mean that the preliminary injunction stands; it wouldn’t be a ruling about whether DAPA itself was unconstitutional. And such a ruling would be a blow to the millions of immigrants who would have been eligible for the legal protections Obama sought to extend to them. But it wouldn’t be a repudiation of the arguments that Democrats are making on their behalf, and which a majority of Americans are sympathetic too. So I hope we can all keep this case in perspective and perhaps, even, appreciate the silver lining: a ruling in Texas’s favor would also be a timely and reassuring reminder that there are constraints any president must observe, and recourse for the people in the event that he forgets.