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Attys React To High Court Taking Up Immigration Action Case
Law360, New York (January 19, 2016, 8:25 PM ET) -- The U.S. Supreme Court agreed Tuesday to hear the
federal government's appeal of a decision that blocked President Barack Obama's executive actions on
immigration. The court also asked the federal government and states involved in the case to weigh in on
whether the executive action guidance runs afoul of the "take care clause" of the Constitution. Here,
attorneys tell Law360 why the Supreme Court's taking up the case is significant.
Sujata Ajmera, Strasburger & Price LLP
"Should the court find that the president violated the take care clause, almost 800,000 individuals will
likely lose their previously granted work authorizations; and, barring congressional legislation, millions
more will not be eligible to even apply. Revoking those authorizations will be time-consuming and
costly, and many businesses will lose authorized employees as a result. Additionally, prosecutorial
discretion, specifically regarding prioritizing immigration deportations, has long been considered an
executive function and was a part of the executive actions in question. Ultimately, this decision could
extend far beyond immigration issues and apply to any president’s use of executive action."
Jeffrey S. Bell, Polsinelli PC
"By agreeing to hear the administration’s appeal, the Supreme Court is taking the opportunity to define
the limits of the executive branch’s authority in enforcing the nation’s immigration laws. The
immigration statute provides the executive with the power to establish regulations to perform such acts
which are deemed necessary for carrying out his or her authority under the immigration laws. For many
years DHS (and formerly INS) regulations have allowed the executive to grant deferred action from
immigration enforcement to particular individuals. The Supreme Court will now determine whether the
blanket grant of deferred action to upwards of 5 million individuals, which allows these individuals to
lawfully remain in the United States and obtain work authorization, is a proper execution of the
executive’s enforcement powers. In its order granting certiorari, the Supreme Court specifically asks the
parties to brief and argue whether the administration’s deferred action program violates the take care
clause of the Constitution. The take care clause, which is also known as the 'faithful execution clause,'
requires the executive to take care that the laws be faithfully executed. The Supreme Court clearly
seems to be interested in the opportunity to define the executive branch’s limits under the take care
clause, as the meaning of this clause has seldom been at issue before the court."
Jonathan Franklin, Norton Rose Fulbright
"One cannot read much, if anything, into the Supreme Court’s decision to accept review. Regardless of
how it eventually decides the merits, the court historically has granted a high percentage of U.S.
government petitions for certiorari. The court’s decision to add an issue into the case is more unusual,
although it is difficult to infer anything from that decision either. It could simply be an attempt to ensure
that all issues are presented in one case. Or it could reflect a tentative view of one or more justices that
the issue has independent significance apart from the states’ statutory arguments."
Maria Fernanda Gandarez, Ogletree Deakins Nash Smoak & Stewart PC
"The Supreme Court’s decision to hear the appeal of the injunction blocking President Barack Obama’s
immigration actions bespeaks the court’s willingness to delve into the political fray to address the highly
volatile issue of deferring deportation of undocumented immigrants when the rhetoric surrounding
illegal immigration is running high. As the 2016 presidential elections approach, the court has asked the
parties to address whether these actions violate the take care clause of the Constitution, which charges
the president with enforcing the laws. In its assessment of the parties' arguments, the court should
consider history showing that previous presidents, including Reagan and Bush, have made use of
executive action to provide deportation relief to immigrant families, as part of the responsible execution
of the laws under the Constitution. If the Court reverses the injunction, millions of immigrants may be
able to temporarily avoid deportation. It would make legal history if the granting of certiorari shows the
court’s willingness to bring to bear 21st century legal analysis, moral values and social concerns on a
highly politicized issue — an issue it could have easily sidestepped by allowing time to run out on
Obama’s administration without resolution for one of his top domestic priorities. It’s clear the court has
an agenda; the question is whether it’s a partisan one."
Zlatko "Zack" Hadzismajlovic, McCarter & English LLP
"At stake are the fates of 5 million undocumented. Assuming the U.S. prevails over Texas, these folks are
granted lawful presence and employment authorization. Texas concedes that 'the executive does have
enforcement discretion to forbear from removing aliens.' Assuming that position, it’s difficult to see how
Texas can prevail. Namely, whenever the executive grants withholding of removal or cancellation of
removal, he is doing precisely what is proposed regarding the DAPA and DACA classes — forbearing
from removing otherwise removable aliens. Indeed, the executive is proposing to do so en masse to
similarly situated aliens and, consequently, saving the taxpayer the expense of 5 million removal
hearings."
Evie Jeang, Ideal Legal Group
"The significance of the Supreme Court’s request that both parties address the take care clause is that
there will likely be a notable ruling on the president’s duties to enforce laws. The president’s program,
DAPA, affects 4 million people in the U.S., and would effect pivotal change in our nation’s immigration
policies and laws. In fact, the program will implement one of the largest changes in the history of our
nation’s immigration policy. The Supreme Court’s decision this morning is sure to add fuel to an already
fiery immigration discussion and dialogue amongst the American people."
Megan R. Naughton, Robinson & Cole LLP
"We applaud the Supreme Court’s decision. The court’s decision signals a willingness to lay down a
framework for what the executive branch can do with regard to immigration reform. Our nation of
immigrants deserves that kind of careful consideration. Hopefully, regardless of what the court decides,
Congress and our nation will hear the voices involved in this debate in a setting which promotes
thoughtful and reasoned arguments based on law and precedent."
Gregory Palakow, Archer & Greiner PC
"The summer of 2015 was a great example of a flurry of controversial decisions issued by the court. The
significance of the court accepting the case is the people’s expectation of a final ruling on the legality of
the president’s action and the subsequent action taken by the secretary of the U.S. Department of
Homeland Security, Jeh Johnson, to issue the beginnings of procedural direction for implementation.
Although immigration reform is a political nonstarter, President Obama took action to issue actual
reform through executive powers last November. Although such reform is a very blue-versus-red issue,
interpreting the take care clause of the U.S. Constitution should instead be an issue of historical legal
interpretation, as opposed to political opinion. The clause states that 'the president shall take care that
the laws be faithfully executed.' The somewhat narrow issue of constitutional interpretation should be
whether the November 2014 executive action exceeded presidential powers by creating new a new
classification of 4.3 million undocumented aliens, even if said action was only temporary in scope."
Angelo Paparelli, Seyfarth Shaw LLP
"While immigration advocates may be pleased with the court’s decision to grant cert., the addition of a
fourth issue is ominous. By asking whether the president has 'violate[d]' a clause in the Constitution
requiring that he 'take care that the laws be faithfully executed,' the court’s decision will go to the heart
of presidential power. The court will decide — given finite federal resources — whether the president
abides by the take care clause by declining to enforce the deportation of low-level immigration violators
with strong family ties to citizens and residents because other, far more serious noncitizen offenders
deserve greater enforcement focus. I infer from the addition of the take care clause issue, however, that
some of the conservative justices who may be inclined to limit presidential authority joined their liberal
jurists in voting to grant cert. However the court rules on the merits, I foresee a 5-4 split decision that
will either enshrine or radically limit the president’s power to exercise prosecutorial discretion."
Gordon Quan, Quan Law Group PLLC
“The fact that the Supreme Court elected to take the case so quickly shows great interest. Their focus on
the take care clause indicates they question the standing the states have based on damages that these
states would suffer. At the heart of the case is the power of the executive branch to interpret
enforcement of federal immigration law. Precedents have given this authority to the executive branch.
This case tests that authority’s limits. Note, Judge Hanen never ruled on the constitutionality of the
orders, but issued an injunction because he did not want the 'toothpaste out of the tube' without a full
hearing.”
Chad Ruback, Appellate Lawyer
"The preliminary injunction prevents implementation of the Obama administration’s plan to shield
millions of undocumented immigrants from deportation. Without a Supreme Court reversal, the
injunction would effectively preclude implementation until after President Obama leaves office.
Supreme Court review creates the possibility that the administration will be able to implement its plan.
The decision to grant review often signals an inclination toward reversal, but that might not be true
here, as the court has expressly requested that the parties address the Constitution’s take care clause.
The language in this clause could be interpreted as highly unfavorable to the administration’s plan."
Carlos R. Soltero, McGinnis Lochridge
"By taking up the Fifth Circuit’s ruling on President Obama’s executive actions on immigration, the
Supreme Court will be hearing a potentially landmark issue. Apart from the political aspects of the
immigration debate, the separation of powers question of the extent of discretion that the executive
branch can exercise in enforcing laws is an important constitutional issue raised by this case. Many
Americans and those who have family members, friends or others in their communities potentially
impacted by this decision will be watching this closely."
Robert Whitehill, Fox Rothschild LLP
"The president of the United States must 'take care that the laws be faithfully executed' even if he
disagrees with the purpose of the law. As the clause relates to Deferred Action for Parents of Citizens
(DAPA), it is a fascinating constitutional question. For the millions of parents of U.S. citizens whose only
legal violation is being undocumented — not being criminals or terrorists, only being the folks next door
— the importance of the president’s exercise of prosecutorial discretion so that they can be lawfully
present can’t be overstated. In 1986, Congress passed the Immigration Reform and Control Act (IRCA) to
address the millions of undocumented. Those who qualified for amnesty were on the road to
citizenship. In contrast, DAPA merely offers lawful presence. Before signing IRCA into law, President
Ronald Reagan said: 'I believe in the idea of amnesty for those who put down roots and lived here, even
though some time back they entered illegally.' I couldn’t say it any better than that."
Stephen Yale-Loehr, Cornell University Law School
"The significance of the decision to grant cert. is that the court’s question heightens the constitutional
significance of the case. Instead of merely focusing on whether the administration should have followed
certain statutory procedures before issuing its executive action, the court will also address whether the
president violated the Constitution by failing to fully enforce our nation’s deportation laws. The court’s
decision in June could redefine the balance of power between Congress and the president, either just in
immigration or potentially more broadly."
--Editing by Mark Lebetkin.
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