by Pratheepan Gulasekaram, Associate Professor of Law at Santa Clara University. Professor Gulasekaram teaches constitutional law and immigration law. He is also the co-author of the recently published book, The New Immigration Federalism (Cambridge Press).
A Supreme Court term already loaded with high-profile cases on unions, voting representation, abortion, and affirmative action just added another blockbuster. The Court’s decision to hear United States v. Texas, the challenge to President Obama’s 2014 Deferred Action for Parental Accountability program (DAPA) by 26 states or state officials, will have far-reaching consequences for both the future of immigration enforcement and the power of states to upset those policies. In resolving the case, the Court holds in the balance the lives and livelihoods of an estimated five million persons, nearly half of the current undocumented population of the United States.
The program has been on hold since a federal district court judge in Texas ruled that the Obama Administration (specifically, the Department of Homeland Security) violated the Administrative Procedure Act’s requirement of “notice and comment” rulemaking when it implemented DAPA. On appeal, a split Fifth Circuit panel ruled that even if DHS had complied with notice-and-comment procedures, DAPA was beyond the agency’s statutory authority. In addition, both lower courts found that the state of Texas had standing to prosecute the case, allowing a federal court to reach those conclusions on the merits. In granting certiorari, the Supreme Court asked the parties to also brief the question whether the President’s action was a violation of his constitutional duties under Art. II to “take care that the laws be faithfully executed.”
Of course, the merits questions in the case raise difficult and important questions of delegated statutory authority to the executive branch, administrative law and procedure, and, most broadly, the president’s constitutional authority. I will not comment on these, as they have been the subject of extended commentary here, here, and here. Of the questions presented, the standing inquiry might be the least discussed, but one with the potential to seriously affect immigration policymaking well beyond the current presidential administration and programs like DAPA. This is especially true in our present-day quagmire of party polarization and congressional gridlock. Before discussing the case itself, though, it is worth contextualizing the political and legal dynamics that have culminated in this landmark case, highlighting the role both partisanship and federalism have played in landing Texas before the high Court.
As I detail in a recently co-authored book, immigration policy since Sept. 11, 2001 has fallen victim to party polarization in a way that had previously not been true of immigration politics. That polarization largely explains the inability of Congress to pass immigration over the past 15 years, despite several attempts and broad support from the American public. In turn, Congress’ silence has cleaved space for two emerging policy dynamics. First, states have stepped more fully into the legislative void, enacting an unprecedented volume of both restrictionist and integrationist policies. Second, the federal executive branch has become much more conspicuous and robust in fashioning immigration policy through both enforcement calibration and litigation. The Texas case implicates both trends, and their partisan roots, simultaneously.
From 2004 through 2011, restrictionist state enactments reached record levels, with most of those policies enacted by Republican-controlled state governments seeking to enhance immigration enforcement and encourage unauthorized immigrants to “self-deport.” As I chronicle in a forthcoming law review article, the Obama Administration took the unusual step of suing several states – including Arizona and Alabama – to quash these state immigration regulations. The Court’s 2012 ruling in Arizona v. United States struck down several provisions of these laws, based in large part on a conflict between the state laws and the Administration’s enforcement priorities. Upholding the state immigration enforcement law in Arizona would have changed business-as-usual in immigration federalism, shifting significantly more power to the states to potentially dictate the volume and characteristics of immigration enforcement. Instead, some have argued that the case reified – perhaps expanded – executive control over immigration policy.
As it turned out, the administration’s victory in Arizona was only the second most prominent executive-led immigration event of 2012. That summer, the president announced his Deferred Action for Childhood Arrivals program (DACA), providing deportation relief and the possibility of employment authorization to a large portion of undocumented youth. DACA, along with the Arizona case and the president’s reelection, triggered another wave of state and local enactments, but this time with a more integrationist bent. States expanded driver’s license, public assistance, and educational benefit availability for undocumented immigrants. Not surprisingly, in contrast to restrictionist schemes, integrationist policies were passed almost exclusively from jurisdictions – like California and New York City - controlled by Democrats.