Sunday, July 3, 2016

A little over a week ago, an equally divided Supreme Court left intact a lower court injunction barring the implementation of a major immigration initiative of the Obama administration. The program and litigation had proven to be controversial. Not surprisingly, most of the voluminous commentary about the case has focused on the power of the President vis-à-vis Congress to regulate immigration, the plight of the undocumented immigrants who might have been eligible for temporary reprieve under the program, the role of the states in future immigration policies, and related issues.

It should not be surprising that little of the commentary has focused on the real legal issues before the Supreme Court. Raising legal issues that only a law professor could love, the case really is about something much deeper and much more important to the United States. The case is simply the latest skirmish in the long political debate over immigration reform. As seen with the recent Brexit vote – in which concerns with immigration contributed to passage of a referendum removing the United Kingdom from the European Union, American immigration politics – as historically has been the case -- can be messy, divisive, and heated.

With no success, Congress has debated comprehensive immigration reform bills for more than a decade. Some versions of the reform bills would have offered a path to legalization for the 11-12 million undocumented immigrants living in the United States. Various incarnations of the DREAM Act would have provided relief to undocumented youth.

Because of the lengthy stalemate in Congress, President Barack Obama announced measured, limited, and temporary steps to address some of the issues facing this nation’s undocumented immigrants.

In November 2014, the Obama administration announced a “deferred action” program, Deferred Action for Parents of Americans (DAPA) for the undocumented parents of U.S. citizens and lawful permanent residents. The program built on the previous Deferred Action Program for Childhood Arrivals (DACA) program, which was implemented in the summer of 2012. DACA provided limited and temporary relief to hundreds of thousands of undocumented young people and was viewed as a ray of hope at a time when improvements through congressional action looked bleak. DAPA would have provided similar relief to many more.

“Deferred action” is fancy language that means that the U.S. government will not focus on removing undocumented immigrants who are otherwise law-abiding. It is a kind of prosecutorial discretion routinely employed by government in the enforcement of the law. Deferred action is not a path to legalization or citizenship and should not be mistaken as some kind of “amnesty.” It instead is a temporary reprieve from removal, revocable at the will of the Executive Branch (and thus by a new President).

Nobody, including President Obama, disputes that only Congress could create a durable path to legalization or citizenship for undocumented immigrants.

Although cloaked in the language of the law, the simple truth of the matter was that the Republican governor of Texas and 26 states did not agree with the Democratic administration’s policy choices. And, politically, they had little use for President Obama. They sued in federal court to put the immigration plan on hold and ultimately ended one of the Obama administration’s signature immigration measures. Fortunately, the Supreme Court with its even split did not create precedent that would allow the states in the future to pursue litigation for partisan political ends.

In the end, what began as a political question will return to the political arena after the Supreme Court’s non-decision in United States v. Texas. The question of immigration reform will return to Congress.

But even if the Supreme Court had upheld the administration’s immigration programs, Congress would still have needed – as it does now -- to address immigration reform. Deferred action does not offer permanent relief for the millions of undocumented immigrants like that which would be provided by many comprehensive immigration reform proposals. Indeed, a future president – a President Donald Trump, for example – might try to deport any and all deferred action recipients.

As the outcome of United States v. Texas should make clear, congressional action is necessary to reform the immigration laws. As most knowledgeable observers agree, the mass deportation of the millions of undocumented immigrants who are parts of our communities simply is not feasible. Consequently, some kind of path to legalization of undocumented immigrants is needed. Most informed observers further agree that reform of the legal immigration provisions of the laws is needed. Last but not least, many Americans believe that we need better enforcement measures All of these aspects of immigration reform raise thorny political questions that require careful deliberation and rational discourse..

In the end, the nation needs to think about how we achieve meaningful and lasting immigration reform that works.

KJ

https://lawprofessors.typepad.com/immigration/2016/07/united-states-v-texas-the-supreme-court-punts-returns-immigration-reform-as-a-political-question-for.html