WASHINGTON — The Obama administration appealed to the Supreme Court on Friday for an expedited review of its plan to shield more than 4 million undocumented immigrants from deportation.
The request, outlined in a 35-page court filing, asserts that the case “warrants immediate review” because of an “unprecedented and momentous” ruling from the U.S. Court of Appeals for the 5th Circuit earlier this month that upheld a challenge to the deferred deportation plan brought by Texas and 25 other states led by Republican governors.
“If left undisturbed, that ruling will allow states to frustrate the federal government’s enforcement of the nation’s immigration laws,” the Justice Department said. “It will force millions of people … who are parents of U.S. citizens and permanent residents to continue to work off the books, without the option of lawful employment to provide for their families.”
The administration’s appeal sets up the possibility of a major legal battle over immigration at the end of President Obama’s tenure, in the midst of partisan battles over Syrian refugees, and in the midst of an already caustic presidential election campaign.
Arguing that the federal appeals court ruling earlier this month had “far-reaching and irreparable humanitarian impact,” administration lawyers said the lower court decision bars an estimated 4 million parents “who have lived in this country for years, would pass a background check, are not priorities for removal and have a son or daughter who is a U.S. citizen or a lawful permanent resident.”
The coalition of Republican governors had argued to the appeals court that Obama lacked the authority to protect about one-third of the nation’s undocumented immigrants by executive fiat. The authority that the administration claimed, the court said in a 2-1 ruling, would allow it “to grant lawful presence and work authorization to any illegal alien in the United States.”
The administration and immigration rights groups have hung their hopes on the Supreme Court rather than the conservative appeals court with jurisdiction over Texas, Louisiana and Mississippi. But the four-month wait for the lower court’s ruling means that the administration had to rush its appeal in hopes of getting the case on the high court’s docket this term.
Texas now has a month to respond, and the justices could take up the request in early January — barely enough time to schedule the case for oral arguments in April and a decision by the end of June. That is the scenario the administration seeks; a decision reversing the appeals court — hardly a guarantee — would give the Department of Homeland Security seven months to begin implementing the policy before Obama’s term ends in January 2017.
If the case is not heard until later in 2016, even a reversal would leave the 4.3 million undocumented immigrants deemed eligible for the program at the mercy of the next president — either a Democrat who likely would continue the program or a Republican who likely would have campaigned against it.
Obama unveiled the program exactly a year ago as an extension of his 2012 policy delaying the threat of deportation for about 770,000 undocumented immigrants brought to the country as children. The new plan would broaden that program and add protections for adults with children who are U.S. citizens. It would make them eligible for driver’s licenses, work permits and a host of health care, disability and retirement benefits.
Federal District Court Judge Andrew Hanen temporarily blocked the program in February, ruling that the states were likely to win their argument that Obama lacked executive authority to carry out the plan without congressional action, or at the least a formal period for public comment. In May, the appeals court panel refused to let the program continue while it considered the appeal.
In its ruling earlier this month, the appeals court’s 2-1 majority said Obama’s program “would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status, without complying with any of the requirements … that Congress has deliberately imposed.”
Their ruling said the program “would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.”
Judge Carolyn Dineen King dissented, arguing that the deferred action program was an “exercise of prosecutorial discretion” beyond the reach of federal court judges. She also criticized her court for stalling well beyond its normal 60-day period of review.
“I have a firm and definite conviction that a mistake has been made,” she said. “That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay.”