The Obama administration said Tuesday it would ask the Supreme Court to rule next year on the president’s plan to allow millions of undocumented immigrants to remain and work in the United States without fear of deportation, a ruling that could inflame the political debate in the 2016 presidential election.
After a series of recent setbacks for Obama in court, there is a new urgency among White House officials and advocates to start enrolling immigrants before the president leaves office in January 2017.
Administration officials remained hopeful that a victory at the high court in June would give them enough time to launch a program that Obama has made the centerpiece of his bid to remake immigration laws through executive action. The program has yet to begin, delayed nearly a year after Texas and 25 other states won an injunction that was upheld by a federal appeals court late Monday.
The legal losses, along with pledges from Republican presidential candidates to dismantle Obama’s actions, have ramped up efforts to get the program implemented before a new president is inaugurated. Obama aides acknowledged that it would be virtually impossible in that time to enroll the estimated 5 million immigrants who could be eligible for three-year deportation deferrals.
“Even in light of a favorable outcome for the administration and the country, I don’t think the expectation is we’d get 5 million applications on the very first day,” White House press secretary Josh Earnest said. But he vowed that the administration “would move forward on as aggressive a time frame as we could.”
The first order of business will be getting the case accepted by the high court for next spring. Generally, the Supreme Court must accept a case by January in time to hold oral arguments and decide it by the end of June, when the justices leave for the summer. John P. Elwood, a Washington lawyer who keeps track of petitions for SCOTUSblog, said the Obama administration would need to get its petition to the Supreme Court by the end of this month and oppose any attempt by Texas to get an extension in filing its own brief.
Obama has made reforming the immigration system a top second-term priority, and he acted unilaterally last November after Republicans in Congress blocked a comprehensive bill. The program, known as Deferred Action for Parents of Americans (DAPA), allows parents of U.S. citizens to apply for work permits, provided they have lived in the country for at least five years and not committed other crimes. It is modeled after a 2012 program that has deferred the deportations of more than 600,000 immigrants who entered the country illegally as children.
Although the GOP has denounced the president’s executive actions, the issue is politically fraught for both sides. Latinos are among the fastest-growing voting blocs in the nation, and they overwhelmingly supported Obama’s reelection victory over Republican nominee Mitt Romney in 2012. Democrats already have sought to make immigration reform a central issue in the 2016 campaign.
The three major Democratic candidates, including front-runner Hillary Rodham Clinton, blasted Monday’s ruling from the U.S. Court of Appeals for the 5th Circuit that upheld a lower court’s injunction from February. In a Twitter message, Clinton called the court’s decision “wrong” and said the Supreme Court should allow Obama’s programs to move forward “so millions of families can stop living in fear.”
Republicans, however, have cast Obama as an imperial president who acted against the will of Congress and violated his constitutionally mandated duty to enforce federal border control laws. The 5th Circuit, in a 2-to-1 ruling Monday, said it agreed with skepticism from a U.S. District Court in Brownsville, Tex., that the Obama administration is not employing sufficient discretion in extending work permits to such a large class of undocumented immigrants.
“A victory for rule of law as Fifth Circuit rules against Pres. Obama’s illegal & unconstitutional executive amnesty!” Sen. Ted Cruz (R-Tex.), a GOP presidential hopeful, wrote on Twitter.
For illegal immigrants whose only hope for deportation relief lies in Obama’s stalled executive proposals, news of the appeals court ruling came as a sharp disappointment. Miguel Claros, 51, a Bolivian-born car mechanic in Silver Spring, had joined a nine-day fast last month outside the New Orleans appeals court building where Monday’s ruling was issued.
Obtaining a reprieve from deportation would ensure that his two young sons, both born in the United States, would never be separated from him and their mother. And obtaining a work permit would allow him to pursue his dream of launching a car dealership.
“I don’t want millions of other decent people to continue suffering such humiliation,” said Claros, who has lived in the United States for 16 years. “It fills my heart with rage.”
Officials at CASA of Maryland and Virginia, the largest service agency for Latino immigrants in the Washington region, said they were prepared to assist applicants through the process if the Supreme Court upholds Obama’s proposals.
“If we get a positive Supreme Court ruling by summer, that would still put us on schedule to have six to eight months for implementation” before a new president takes office, said George Escobar, director of legal services at CASA in Hyattsville, Md.
White House allies said they believed Texas would lose the Supreme Court case because states are usually unable to challenge federal immigration policies. In its ruling, however, the appeals court agreed with District Judge Andrew Hanen that Texas had sufficient legal standing because it would incur fees associated with driver’s licenses for immigrants who were granted work permits.
An estimated 11 million undocumented immigrants are living in the United States. The Obama administration, facing limited resources, has deported 300,000 to 400,000 a year. Obama said his directive would streamline enforcement to focus on violent criminals and newly arrived immigrants.
Although deferred action is often used by law enforcement agencies to set priorities for enforcement, a program on such a massive scale has never been attempted before. The administration said that immigrants must undergo a formal application process that involves filling out paperwork and being screened by the Department of Homeland Security. But the states argued that all but a tiny percentage of the applicants in the 2012 deferred-action program were granted work permits.
Obama’s program “instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were ‘merely pretext,’ ” Judge Jerry Smith wrote in his majority decision Monday.
Two judges on the 5th Circuit panel — Smith and Jennifer Elrod, both appointed by Republican presidents — had ruled against a stay motion from the administration in May. A third judge, Carolyn Dineen King, who was appointed by President Jimmy Carter and was not on the earlier panel, dissented Monday, ruling in favor of the Obama administration.
“The district court’s conclusion that DAPA applications will not be reviewed on a discretionary, case-by-case basis cannot withstand even the most deferential scrutiny,” King wrote in a dissenting opinion. “Today’s opinion preserves this error.”
She added that the court took far too long to make the decision, which immigration advocates have speculated was aimed at providing the Obama administration a narrow window to get the case before the Supreme Court.
“There is no justification for that delay,” King wrote.
Robert Barnes contributed to this report.