The 26 “red states” that brought the legal challenge to the Obama administration’s executive orders on immigration do not want the U.S. Supreme Court to rule on the appeal this term in the middle of an election year. They would rather use the case for political propaganda purposes during the election.
So the 26 “red states” are asking the Court (1) not to rule on the Obama administration’s appeal, or (2) to expand the scope of the appeal to address the underlying constitutional issues (which has not been addressed by the trial court nor the 5th Circuit Court of Appeals). This would be extraordinary for the Court to depart from the regular order of legal procedure.
The GOP desperately does not want the Court to rule on this appeal until after a new president takes office in January 2017 — leaving hundreds of thousands of immigrants who qualify for the Obama administration’s DACA and DAPA programs in legal limbo and uncertainty, because the Mass Deportation Party does not care about their situation. They are hoping that a Republican will be elected in 2016 who will reverse Obama’s executive orders, rendering this appeal moot, and putting those individuals in the DACA and DAPA programs in jeopardy.
The U.S. Supreme Court today issued its orders list from last Friday’s conference, and granted the Obama administration’s request to hear this appeal from the 5th Circuit this term. There will be a decision on the administration’s executive orders before the end of June.
Lyle Denniston at SCOTUSblog reports, Immigration policy: Review and decision this Term:
The Obama administration’s sweeping change of deportation policy for undocumented immigrants will get a thorough review by the Supreme Court, including the question of whether it violates the Constitution, the Court announced Tuesday. The case of United States v. Texas will be set for argument in April, making it almost certain that there will be a final ruling by the end of June — in the midst of a presidential election campaign in which immigration is a major issue.
The immigration case involves a policy that could postpone, for three years and perhaps longer, the deportation of more than four million individuals who entered the country illegally. The policy mainly involves parents of children who are U.S. citizens or have permanent resident alien status. Announced fourteen months ago, the parents policy has never gone into effect because it is blocked by lower court orders in a case filed by twenty-six states.
A rather unusual aspect of the case was that, . It is whether the policy violates the constitutional clause that requires the president to “take care” that the laws passed by Congress are faithfully executed.
It is rare for the Court to take up an issue that was left undecided in lower courts. The question no doubt was added to assure that all aspects of the states’ challenge are reviewed together.
In addition to that issue, the case involves whether the states had a legal right to sue, or are barred from doing so under Article III; whether the policy is “arbitrary” and beyond the president’s powers under federal immigration laws, and whether it is illegal because the government did not seek public reaction to it before adopting it as policy.
The government got what it wanted with the Court’s agreement to set it for argument during the current Term, but did not get what it wanted on the scope of the Court’s review. Its appeal had raised the “standing” and statutory issues. The states, in replying to the appeal, urged the Court to add the “Take Care Clause” issue. The states believe that the policy contradicts existing laws on deportation, and amounted to the president acting as if he had legislative power. The government opposed expanding the case to include that issue — which, it argued, added nothing to the states’ statutory arguments.
Before the Court gets to the other questions in the case, it will have to make up its mind on the Article III issue: did the states have a right to sue the president over the way he chose to enforce immigration laws? To get over that barrier, the states must convince the Court that at least one of them will suffer a legal injury if the policy goes into effect. Lower courts ruled that Texas would be injured because of the cost of providing driver’s licenses for those individuals allowed to stay in the country.
If the Court were to find that the states were barred from suing, that would be the end of the case. If the states prevail on that question, the legal fate of the policy would then be up to the Court. Although the case has not yet gone to a trial, it appeared that the Court was prepared to settle the validity of the program without waiting for further activity in lower courts, if it is satisfied that the states had a right to sue.
The date in April for the Court’s hearing on this case has not yet been set. At this point, the Court is balancing out what to argue in the months of March and April. Not all of the twelve cases in which the Court granted review last week or Tuesday will necessarily be heard and decided this Term.
ObamaCare Individual Mandate Upheld
The Court also spared the federal government from another challenge to the new health care law, denying review of a claim that the individual insurance mandate violates the Constitution’s Origination Clause, requiring federal tax legislation to start in the House of Representatives (Sissel v. Department of Health & Human Services).
The Justices’ decision to pass up the latest constitutional challenge to a provision of the Affordable Care Act — the Origination Clause — marked the first time that a major case against the act has been turned aside. The Court has previously issued three decisions on the ACA — two rejecting challenges, and one upholding a challenge — and it will hear a fourth case, on the contraceptive mandate in the law, later this Term.
While the law’s mandate that virtually all Americans must have health insurance or pay a financial penalty to the government had been upheld in one of those prior rulings, the new Sissel case sought to test that again. This time, the theory was that the obligation to buy insurance or pay a financial penalty was a tax measure — which the Constitution requires to originate in the House of Representatives. The challengers argued that the Senate actually began the ACA’s legislative journey by simply substituting its language for that of a much different House-passed measure. Two lower federal courts rejected that complaint, and the Justices on Tuesday chose to leave that rejection unreviewed.
Arkansas Abortion Restrictions Unconstituional
In another significant action, the Justices refused to hear an Arkansas abortion case, involving a state law that bars any abortion after the twelfth week of pregnancy (Beck v. Edwards).
[Arkansas physicians, on behalf of themselves and their patients, challenged the constitutionality of the Act, seeking a permanent injunction. The district court granted a permanent injunction, prohibiting enforcement. The Eighth Circuit affirmed, noting that viability of a fetus varies with individuals. ]
In refusing to review the appeal in an abortion case by state officials in Arkansas, the Court kept itself out of the controversy over the continuing efforts in some states to curb access to abortions by banning the procedure at earlier points in pregnancy. The Arkansas law keyed the ban to the point in pregnancy when a fetal heartbeat could be detected, but at least after twelve weeks. The law had a number of exceptions, but still amounted to a significant reduction in women’s access to abortions.
One of the most significant aspects of the Arkansas case was that three judges on the U.S. Court of Appeals for the Eighth Circuit had urged the Supreme Court to reopen the question of when abortions could be banned outright. Since Roe v. Wade in 1973, the Court has ruled repeatedly that a state may not totally ban abortions until after a fetus has reached “viability” — the point at which it could survive if delivered alive. Viability usually is reached somewhere around the twenty-third or twenty-fourth week of pregnancy. The lower court judges said that recent developments in fetal medicine have suggested that the “viability” dividing line on abortion bans is no longer valid as a medical phenomenon.
While a number of legislatures have passed measures similar to, or more restrictive than, the Arkansas law, some legislatures have adopted another approach to reducing abortions — laws intended to closely regulate how abortion clinics operate. [TRAP laws] On March 2, the Court will hear oral arguments in such a case, involving restrictions adopted in Texas.
All in all a good day at SCOTUS.
UPDATE: Bonus! The Court also rejected the frivolous appeal from Crazy Uncle Joe Arpaio seeking to halt President Obama’s immigration orders. He should be sanctioned by the court for bringing these frivolous lawsuits for public attention. Arpaio’s appeal on immigration plan rejected.