By Lydia Wheeler - 01/25/16 06:00 AM EST
President Obama’s use of executive power is facing another major test at the Supreme Court, this time on the contentious issue of immigration.
Programs he launched through executive action last year to shield as many as 5 million immigrants from deportations have been on hold since a federal judge ruled that Texas and 25 other states have a legitimate basis to challenge the programs.
Republicans say Obama is making a mockery of the law with his immigration actions and have expressed confidence he will be handed a stinging defeat.
But Democrats are equally bullish, arguing the president’s actions are well within his authority.
Some legal experts argue the administration will have the upper hand because the high court has traditionally given wide latitude to the executive branch when it comes to immigration law.
“This is an area where it is clearly the prerogative of the federal government to set immigration policy and the executive in particular to basically have the discretion on enforcement, which is what the president is arguing,” said Raúl Hinojosa-Ojeda, an associate professor at UCLA and director of the school’s North American Integration and Development Center.
The states suing the administration see things differently. They argue the president’s Deferred Action for Parents of Americans (DAPA) and Deferred Action for Childhood Arrivals (DACA) would impose huge burdens, with additional costs for healthcare, law enforcement and education.
Texas, specifically, says it will be financially burdened by having to issue more drivers’ licenses, which is a subsidized benefit for residents now.
A lower court agreed that the states had standing to sue over the immigration programs and issued the injunction that put the case on a fast track to the Supreme Court.
Conservative court-watchers say the lower courts were correct in ruling that Obama’s actions constituted unlawful overreach.
Jay Sekulow, chief counsel of the American Center for Law and Justice, said the arguments that succeeded in blocking the implementation of Obama’s actions are the very arguments that should win the day at the Supreme Court.
“The constitutional system is simple,” Sekulow wrote in an op-ed on FoxNews.com. “Congress makes the laws. The president enforces the laws. And the courts interpret the laws.”
Legal experts expect the administration’s strongest argument in the case will be that the president has the prosecutorial discretion under immigration law to halt deportations and offer permanent legal residence to parents of U.S. citizens and some high-achieving illegal immigrants brought to the country before age 16.
And while the states argue that the president overstepped his legal authority by making unauthorized aliens eligible for work, Anil Kalhan, an associate professor of law at Drexel University, said there is nothing in Obama’s actions that explicitly grants work permits.
“For decades people who have deferred action have always been able to apply for a work permit,” he said, adding that Texas made that mistake in its lower court filings.
“At least the filing in the Supreme Court right now is more clear about this mistake,” he said.
But in taking the case, the Supreme Court did something unusual: It asked the parties to argue an additional question in their briefs.
The justices asked whether the immigration programs violated the Take Care Clause under Article II of the Constitution, which directs the president to take care that the laws are faithfully executed.
Barnaby Zall, who filed an amicus brief in support of Texas for the American Unity Legal Defense Fund, said the court’s request has added a wild card to the case.
“I believe this is the first time since [President Harry] Truman took over the steel mills in the 50's that the Take Care Clause has been a central part of a case, and certainly when the Court asks about something, they want to know about it,” Zall, an attorney with the Maryland-based Weinberg, Jacobs & Tolani LLP, said in an email to The Hill.
“So that changes what otherwise might be a simple prediction of the court's behavior into something entirely different.”
While it takes four justices to grant review of a case, Zall said it’s not clear how many justices it took to add the question, “especially one [as] momentous as a fundamental question of separation of powers.
“We also know, based on the recent case striking down Arizona's ballot initiative against employing illegal immigrants, there were five justices who voted for great leniency toward immigrants,” he said. “But at the same time, as the late Solicitor General Rex Lee once told me, the Court ‘sits to protect the harbor’ and that means they will look very hard at questions of the proper exercise of executive power.”
At one time even Obama had expressed doubt about his power to change the immigration system unilaterally.
“I am president, I am not king. I can’t do these things just by myself,” Obama said in a 2010 interview with Univision.
Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, said the administration has a difficult task ahead in proving the president had the executive authority to issue those actions.
"This court has repeatedly been called upon to push back against the incredible overreach by the Obama administration," she said.
"Executive actions have their place, but you can't change the law through an executive action and that's what the president is trying to do here."
Still, some say the 5-3 ruling in the Arizona case four years ago, which Justice Elena Kagan recused herself from, provides a strong clue that Justice Anthony Kennedy — often the court’s swing vote — will side with the administration on the immigration actions.
In delivering the opinion of the court in that case, Kica Matos, director of immigrant rights and racial justice at the Center for Community Change, said Kennedy stated unequivocally that is up to the executive to decide when and how to exercise the law.
“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” Kennedy wrote in the opinion of the court.
Matos also points to Chief Justice John Roberts, who said during his nomination hearing that “it’s my job to call balls and strikes and not to pitch or bat,” pledging to merely referee political disputes instead of playing for one side.