Although some have called United States v. Texas the immigration case of the century, the case heard last week by the U.S. Supreme Court is simply the latest skirmish in the long debate over immigration reform.
Comprehensive immigration reform bills have been debated in Congress for more than a decade, with some versions offering a path to legalization for the 11 million to 12 million undocumented immigrants living in the United States and the various incarnations of the DREAM Act, which would provide relief to undocumented youth.
Because of the stalemate in Congress, President Barack Obama announced measured steps to address some of the issues facing undocumented immigrants.
In November 2014, the Obama administration announced a “deferred action” program known as DAPA for the undocumented parents of U.S. citizens and lawful permanent residents. The program built on the previous Deferred Action Program for Childhood Arrivals (DACA) program, which was announced in June 2012.
“Deferred action” means that the U.S. government will not focus on removing undocumented immigrants who are otherwise law-abiding. It is a kind of prosecutorial discretion routinely employed by government in the enforcement of the law. Deferred action is no path to legalization or citizenship and should not be mistaken as some kind of “amnesty.” It instead is a temporary reprieve from removal.
Nobody, including Obama, disputes that only Congress could create a durable path to legalization or citizenship for undocumented immigrants.
Texas and 26 states do not agree with the administration’s policy choices. They sued in federal court to put the Obama immigration plan on hold. A District Court judge in south Texas barred its implementation. A divided panel of the Court of Appeals upheld that ruling.
The U.S. Supreme Court is now considering the lawfulness of the deferred action programs. The decision in the case is complicated by the untimely death of Justice Antonin Scalia. With only eight justices on the court, they could be split 4-4 on the case when it rules later this year. Such a split would allow to stand the lower court injunction prohibiting the implementation of Obama’s executive action.
The case raises an array of technical legal issues that only law professors could love.
The two central legal issues in the case are whether the states have what is known as “standing” under Article III of the U.S. Constitution to sue in federal court and whether the Obama administration failed to comply with the procedural requirements of the Administrative Procedure Act in adopting the new program.
However the court decides these issues will not end what truly is at the core of the dispute – the debate over immigration reform.
If the states prevail, Obama will not be able to implement DAPA and the expanded DACA. Future presidents will have to act consistent with the court’s ruling. The question of immigration reform will return to Congress.
But even if the court upholds the administration’s immigration programs, Congress would still need to address immigration reform. Deferred action does not offer permanent relief for the millions of undocumented immigrants like that which would be provided by many comprehensive immigration reform proposals. Indeed, a future president – a President Donald Trump, for example – might try to deport any deferred action recipients.
Whatever the outcome of United States v. Texas, congressional action is necessary to reform the immigration laws. As most knowledgeable observers agree, the mass deportation of the millions of undocumented immigrants who are parts of our communities simply is not feasible. Consequently, some kind of path to legalization of undocumented immigrants is needed. Most informed observers further agree that reform of the legal immigration provisions of the laws is needed. Last but not least, many Americans believe that we need better enforcement measures.
In the end, the nation needs to think about how we get to the end game of true, meaningful and lasting immigration reform that works.
Kevin R. Johnson is dean of the University of California, Davis, School of Law. Contact him at firstname.lastname@example.org.