Chris Chmielenski's picture


  by  Chris Chmielenski

Oral arguments before the Supreme Court in the case filed by Texas and 25 other states against Pres. Obama's second executive amnesty will take place on Monday. The Court's ruling, which likely won't come until late June, could have an enormous impact on the race for the White House, Congressional action for the rest of the session, and millions of American workers who would face increased labor competition from millions of illegal aliens receiving work permits if the President's actions are upheld.

The lower courts have ruled that the States have standing to sue the Administration, and they have issued the temporary injunction preventing the amnesties from taking effect. They have not yet ruled on the substance of the case.

The Supreme Court has not only taken up the issue of standing, but has also decided to hear arguments on the substance of the states' challenge that the amnesties violate the Take Care Clause of the Constitution.

Here are the possible outcomes:

  • Uphold the injunction, which sends the case back to the District Court to decide on the merits;
  • Overturn the injunction, which lets the amnesty go forward, but still sends the case back to the District Court to decide on the merits (the Administration would likely try to issue as many work permits as possible before the District Court ruled); or
  • Toss the case by ruling that Texas and the other states lack standing.

And of course, any decisions could be split since there are only eight justices currently sitting on the Court. The lower courts' rulings would stand in a split decision.

Obviously, there's a lot riding on this decision. For the Obama Administration, there's not much it can do should the Court rule against the actions or issue a split decision, which would keep the lower court's temporary injunction in place. There is no interest in Congress to move amnesty legislation six months short of an election.

But should the Court rule in the Administration's favor, it puts GOP Leadership in a pickle. For more than a year, GOP Leaders have deferred to the Courts and avoided taking legislative action against Pres. Obama's amnesties. But if the Court rules in the President's favor, they will once again come under massive pressure to defund the amnesties, an action that could ultimately lead to a government shutdown during an election year.

Democratic Presidential Hopefuls Hillary Clinton and Bernie Sanders have both pushed to expand Pres. Obama's executive actions -- a push that fully depends on the Court's ruling in his favor. Republicans Donald Trump, Ted Cruz, and John Kasich have all said they would repeal the actions if elected. Voters on both sides of the issue could be motivated depending on how the Court rules.

But before the Court can decide on the legality of Obama Administration's amnesties, the states will have to argue that they have standing to sue the Administration; more simply, they'll have to prove that Obama's executive actions cause damages for the states. The lower courts have already ruled affirmatively on standing, finding that Texas' claim that providing driver's licenses to amnesty recipients causes financial harm to the state.

Should the Court affirm the lower courts' ruling on standing, the Administration will then have to defend its proposed amnesty actions in light of the Take Care clause of the Constitution that requires the executive branch "take care the the laws be faithfully executed."

The 2012 Deferred Actions for Childhood Arrivals (DACA) is not under challenge. The Court will consider only the 2014 expansion of the program (extending legal status and work permits from two to three years) and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA, the largest of the actions, would grant legal status and work permits for three years to an estimated 5 million illegal aliens, allowing them to hold any job in the United States.

The Administration is trying to define the amnesties as a "guidance" to its agencies to use prosecutorial discretion in the enforcement of the nation's laws. But by giving work permits, social security cards, and access to federal earned benefit programs (social security, medicare, and disability), the Administration wrote in its own defense that "an alien with deferred action is considered 'lawfully present' for these purposes."

The States are arguing that the awarding of legal presence conveys a rule, so the Court must decide, first, if the Administration took the proper steps in enacting the rule, and, second, if they even have the authority from Congress to grant work permits and Social Security cards to a class of illegal aliens.

The eight justices will only hear arguments on Monday. The last time the Court took on a politically-charged and divisive issue like this -- the Affordable Care Act -- it heard arguments in late-March and rendered a decision on June 28. And there's always a chance it could delay a final decision until Antonin Scalia's seat is filled. So nothing is expected until the second half of June.

CHRIS CHMIELENSKI is the Director of Content & Activism for NumbersUSA

Obama's executive amnesties

Updated: Mon, May 2nd 2016 @ 8:50am EDT

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