A federal appellate court has delayed once again the Obama administration's controversial plans to grant some undocumented immigrants a reprieve from deportation. There is now a chance that the Supreme Court will consider the dispute sometime next year. In the meantime, some 4 million people living here illegally who had hoped for at least a temporary guarantee that they would be allowed to stay are still waiting.
The decision issued the U.S. Court of Appeals by the 5th Circuit Monday was expected. It's not a final ruling on the case itself. Rather, the court held that while the case is still being decided, the administration couldn't carry out its plans. That decision extended the delay already ordered by a lower court earlier this year. Both courts also had doubts about the administration's legal theory.
All the same, the possibility that the Supreme Court will hear the case in the middle of the next year's presidential campaign means that once again, immigration is at the top of the national agenda. Let's pause to look back at how we got here.
What is Obama actually trying to do again?
The president's plan, which he announced last year, has a couple of components.
- First, it would grant a temporary reprieve to immigrants who are in the country illegally if their children are U.S. citizens or permanent residents. The government would hold off on deporting them. They could also apply for permission to work.
- And it would also expand an earlier program that the administration put in place in 2012. That program allows some immigrants brought here illegally when they were children to apply for a deferral from deportation. Under Obama's new plan, a larger group would qualify.
To figure out whether you or members of your family would qualify for a reprieve under Obama's program, click here.
Those are the most controversial provisions of the plan, which would also help investors and students pursuing degrees in science, technology, engineering and mathematics get visas; modify how undocumented immigrants are detained when they are captured and dedicate additional resources to security at the border.
What isn't Obama trying to do?
First, Obama isn't trying to grant citizenship to anyone. Deportation would be deferred only temporarily for those included in the plan. They'd have to apply again every three years to renew their status.
Second, the plan wouldn't affect most undocumented immigrants, who would still risk deportation daily. There are already roughly 1.2 million people who could qualify for a reprieve under Obama's 2012 program. The new plan would expand that group as well as extend temporary legal protection to those undocumented immigrants whose own children live here legally, adding another 4 million people in total, according to estimates from the Migration Policy Institute. Altogether, there are about 11 million undocumented immigrants living in the country now.
Does the president get to decide who can stay?
Technically, no, but Obama's supporters argue that in practice, that's how it works.
The Department of Homeland Security doesn't have nearly enough agents to deport all 11 million immigrants here illegally, they say, and doing so would likely be enormously expensive. As a result, the agency must choose which undocumented immigrants it will deport and which it will ignore. For the same reason, police officers don't stop every car driving a mile over the speed limit on the interstate, even each of those drivers is technically breaking the law. It's a legal principle known as prosecutorial discretion.
On the other hand, the president's opponents say he has failed in his constitutional duty to execute and enforce the laws passed by Congress. Instead, they argue, he's tried to write what is effectively a new law himself, which is Congress's responsibility.
For several years, Obama was deporting more undocumented immigrants than any previous president. His defenders say the administration is doing as much as possible, and can't reasonably be expected to do much more. So far this year, though, the rate of deportations has declined drastically. Agents are focusing their efforts more narrowly, even while Obama's broader program is disputed in the courts.
What have the courts said about all this?
They never gave the administration a chance to put the plan into action.
A coalition of states, mostly led by Republican governors, sued the administration, arguing the plan would force them to spend more on law enforcement, health care and drivers' licenses for illegal residents. In February, Judge Andrew S. Hanen of the federal district court in Brownsville, Tex. put the program on hold while the courts considered this challenge. In May, the appellate court issued a preliminary ruling sustaining that delay, which it then confirmed on Monday.
The debate in the courts so far has been a narrower one. Rather than the president's constitutional responsibility to enforce the law or the idea of prosecutorial discretion, judges have been considering three main questions.
First, there's the issue of whether the states are even allowed to sue the federal government in a case such as this one. To sue the government, you have to show that its actions harm you in a concrete and specific way. The lower court decided that the costs of issuing drivers' licenses to undocumented immigrants qualified states to sue.
Second is the question of whether the administration followed the right procedures in announcing the new program. Federal agencies aren't allowed to simply announce new rules whenever they like. There is a certain procedure they are legally required to follow, and the states argue that the Department of Homeland Security was obliged to follow those rules in this case.
For its part, the administration argues that as a general, interpretive statement of its duties, Obama's new program doesn't count as a new rule. This is a pretty legal argument that makes for a striking contrast with the immigration debate more generally, which often excites fierce emotions on both sides. The court suggested the government is likely to fail in defending its process for issuing the new rule.
Finally, there is the immediate problem of whether the administration should be allowed to carry through its plan while all these other questions are being decided. So far, the courts have said it should not, including in the most recent decision on Monday.