It is the genius of the law to reduce a morally fraught battle over power and liberty to a petty dispute over drivers’ licenses. But the debate over President Barack Obama’s immigration policy is about first principles, and the Supreme Court shouldn’t hesitate to address them.
On Monday, the 5th U.S. Circuit Court of Appeals issued a 2-1 decision upholding a lower court’s ruling against Obama’s executive actions on immigration; on Tuesday, the administration said it would appeal the ruling to the Supreme Court. Texas, joined by 25 other states, had sued to stop the administration’s implementation of its Deferred Action for Parents of Americans and Lawful Permanent Residents program, announced a year ago.
That program would shield qualified undocumented immigrants from deportation. Under a similar program announced in 2012, more than 650,000 “Dreamers” — undocumented immigrants who had been brought to the U.S. as children — have been approved for deferred action. The disputed program would make more than 4 million additional undocumented immigrants eligible to stay.
The Obama administration claims authority for the programs under the executive’s broad powers of prosecutorial discretion. It justifies the programs in part by pointing out that Congress has provided funds to remove only about 400,000 undocumented immigrants per year, necessitating discretion in removals.
But case-by-case discretion is difficult to apply to a potential class of more than 5 million people. The administration’s policy was borne of simple frustration with Congress, which has repeatedly failed to address the presence of some 11 million undocumented immigrants in the U.S.
Texas and the other plaintiffs, for their part, say that the administration had failed to follow proper rulemaking procedure. The state also said that if the presence of undocumented immigrants in Texas became lawful, the state would incur costs of supplying them with driver’s licenses.
This claim, too, is cramped and legalistic, not to mention dubious: There is every reason to believe that deferred action would lead to more lawful employment and more tax revenue for Texas and other states. But Texas leaders oppose undocumented immigrants — and, emphatically, they oppose the president.
The Supreme Court can be expected to discount the disingenuous arguments of both sides, and it will not issue a ruling on the wisdom of Obama’s policy. But it shouldn’t evade the crux of the matter: How much authority does the executive have to address a public policy crisis when the legislature fails to act? The current decision says the Obama administration exceeded its authority, but others have concluded that, when it comes to immigration policy, the executive branch has wide latitude. How wide?
Those are the questions the Supreme Court should attempt to answer. Current candidates for the presidency have proposed answers ranging from Hillary Clinton’s vow to exceed Obama’s executive actions to Donald Trump’s call for mass deportation. But it’s the Obama administration that has a concrete federal policy on the table.
The program’s legality should be resolved before the high court’s current term ends next June. The president deserves a speedy answer, as do the millions of undocumented immigrants in legal limbo.
