US Immigration and New York Employment Law

US Immigration Reform News: Supreme Court to Make a Decision

The highest court of the country announced earlier in January that it would take the case on legality of Obama’s executive order on immigration, which provides granting a provisional status in USA for over 5 million of illegal immigrants. The case was brought by Texas as well as 25 other states claiming illegality of Obama’s executive actions.

In February 2015 US District Court Judge in Texas barred the Department of Homeland Security (DHS) from going ahead with the Deferred Action for Parents of Americans and Lawful Permanent Residents also called Deferred Action for Parental Accountability (DAPA) and Deferred Action for Childhood Arrivals (DACA). Judge Hanen based his injunction on Obama’s failure to go through the public notice-and-comment process required by federal law when executing the immigration reform changes.

Despite this relatively narrow basis of the Texas judge’s decision, the major challenge to the Obama immigration reform is constitutional, i.e. whether president had enough constitutional authority to implement such fundamental changes in the immigration area without Congress. In November 2015 the Fifth Circuit Court of Appeals upheld the District Court’s injunction and ruled that Obama’s executive initiatives were unlawful. Then the US Justice Department appealed the decision to the US Supreme Court.

The White House alleges that Obama’s initiative is “consistent with the actions taken by presidents of both parties.” On the other side, Attorney General of Texas Ken Paxton wants the Supreme Court to confirm that no president can “unilaterally rewrite congressional laws and circumvent the people’s representatives.” The supreme justices will listen to the arguments on both sides and probably can make a decision on United States v. Texas by the end of June.

The situation became more complicated after death of Justice Scalia. On the one hand, Obama got an opportunity to appoint a new justice and give the court’s majority to liberals. On the other hand, the Republican controlled Senate has already promised to block any Obama’s nomination. Senate Majority Leader Mitch McConnell claimed that it would be quite unusual for the president to nominate a Supreme Court Justice so close to the end of his term. According to him, the vacancy “should not be filled until we have a new president.” This would leave the Supreme Court one justice short until the next president takes office in 2017.

Now the Supreme Court consists of four Republican appointed justices and four Democrat appointed justices. The court is split, although Justice Kennedy used to side with liberal justices on major issues in the past. A tie vote would mean as if the Supreme Court did not hear the case, because this kind of vote would not become a Supreme Court precedent. In this scenario it will probably be heard once again when a new justice is appointed and confirmed.

If the White House wins, it will move fast to implement the DAPA and start enrolling immigrants as soon as possible to make sure the process is going forward before the next president takes office. If the next president is a Democrat, she will probably continue implementing Obama’s initiatives on the USA immigration reform. If a Republican, then the US immigration reform designed by Obama administration will probably be revoked.