The Obama administration used only a brief footnote in a new filing at the Supreme Court to try to steer the Justices away from ruling on the constitutionality of President Obama’s year-old policy to postpone deportation of more than four million undocumented immigrants. Choosing to file a reply to the twenty-six states’ brief filed a week ago in United States v. Texas, administration lawyers sought to dismiss the constitutional challenges as mere repetition of points the states have sought to make under federal immigration laws.

The government document said that the states were seeking to “inject a constitutional question into the case,” because neither of the two lower courts that had upheld temporarily the states’ challenge had said anything about constitutionality. The constitutional issues the states want to raise, if the Court agrees to hear the government’s appeal, have “no independent content,” the new filing argued.

When the states sued the government over the policy, which has never taken effect because of the states’ lawsuit, they argued that the sweeping new policy violates both the constitutional doctrine of separation of powers, by interfering with Congress’s lawmaking power, and the president’s constitutional duty to enforce existing immigration laws that mandate the deportation of immigrants who entered the country illegally — a duty imposed on the president by the “Take Care Clause” in Article II.

In the ordinary course of Supreme Court cases, the Justices tend not to rule on legal or constitutional questions that were left undecided in lower courts. That is part of a long-standing tradition of not deciding constitutional disputes unless it is necessary to do so. However, the states are free to try to mount any argument in support of the temporary victories they have won so far in the lower courts against the new policy.

The government’s reply brief focuses heavily upon the administration’s argument that the states do not have a legal right to sue the government over the way in which it chooses to enforce a federal program or policy. The administration regards the deferred deportation policy as nothing more than the exercise of the executive branch’s discretion on how to carry out federal policy.

The filing of this new document was somewhat unexpected. To try to get the Court to schedule the case for early consideration so that it could be decided this Term, if review is granted, the government had indicated that it would pass up its right to file a reply brief. The Court did go ahead and distribute the papers in the case for the Justices to consider at their private Conference on January 15. That was done last week. The new brief was filed Tuesday afternoon.

Recommended Citation: Lyle Denniston, U.S. discounts constitutional issue on immigration, SCOTUSblog (Jan. 5, 2016, 6:27 PM), https://www.scotusblog.com/2016/01/u-s-discounts-constitutional-issue-on-immigration/