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Supreme Court Sets Election-Year Clash On Immigration

President Barack Obama delivers his final State of the Union address before a joint session of Congress, Jan. 12, 2016.
Associated Press
President Barack Obama delivers his final State of the Union address before a joint session of Congress, Jan. 12, 2016.

Supreme Court Sets Election-Year Clash On Immigration
Supreme Court Sets Election-Year Clash On Immigration GUEST: Glenn Smith, constitutional law professor, California Western School of Law

am Maureen Cavanaugh Tuesday, January 19. Today the US Supreme Court agreed to hear a case that represents one of the signature battles of the Obama presidency. Last year the president announced executive actions on enforcement of immigration policy, that would have delayed deportation for millions of people illegally. The policy expanded the current talk program, and introduced a new program covering parents of US citizens. The executive actions have been challenged in court, and are currently halted under a federal court in junction. Joining me is Glenn Smith, constitutional law professor at school of Law, Glenn, thank you for joining us. You're welcome. Now, is a surprise that the US Supreme Court agreed to hear this case? In some ways, yes, but given, as you have said high profile, given that since the program was under lower court injunctions, the only way to make it potentially liable. And I am not surprised they jumped in, I am surprised that they have added a constitutional issue, but that is the prerogative. I want to ask you about that in one moment. This case, generally, in order to make the US Supreme Court, have to sort of exhaust their federal appeals court hearings. And in this one, I do not believe has aired it well, is an interesting question. In theory preliminary injunction, is an initial interim decision, and then the judge goes back and looks at whether they are ultimately corrected the plaintiff wins. The reality, is that with this, it would mean that the clock would run out and the ministration were not get to establish about the policy and what the Supreme Court intervenes and. And is not surprising that they took at this age. What is the key legal issue the court will hear? Maureen, there is a host of complicated and cascading issues. Most people would be surprised to know that so forth this case has turned on whether the challenging, including's deck Texas. And then there are questions about whether federal courts can review this under the administrative procedure act, conduct the discretionary decision that the state review. There is a lot the plate that the court would get to before it ever reaches the question, that most people that are ion, whether the administration's act Inc. unconstitutional by taking executive action without Congress there at right, exactly. And that is the constitutional issue that they included when they accepted the case today are at that is correct. Lower courts, to this point have decided on these nonconstitutional, or less secure -- sit next to Issues. Under the general, the courts should avoid constitutional rulings unless they have to make them, the Supreme Court will have to be like the lower courts and work its way through the varied Artane but important questions about federal court jurisdiction, and we will see at the end of all of it, if they end up reaching or finding a constitutional point here at now this policy, as you have mentioned, is in the courts, and it has been challenged by a coalition of 26 date. They have claim they will be burdened by this immigration reform. What burden do they claimed that they will suffer? Texas claims that because it is subsidized drivers license for all of its residents, legal or not, that they will have an influx of some half million nearly protected residents because they have work permits and benefits, will want drivers licenses. They claim one couple of million dollars in economic. If the court does rule in favor of the president, and his authority to enact these policy changes, or policy enforcement changes, will the ministration have time to put the new immigration time went into effect? Well, that is a big question. The ruling probably will not come into the Supreme Court term, which will leave them with a few marks. I guess they would really try as much as they can to put this in effect so it is a policy that either for the next Democratic president, to continue, or work on car or at least something the president will have not to overturn, but one that is in effect and benefits of Americans. So when our arguments scheduled before the court and? We do not know that as of yet. Is likely that it will be in the middle, too late spring. Given the fact, briefing schedule, and what has already been done. We would likely be one of the cases that gets a lot of attention, this spring, and then one last decisions on their way out the door in June. Okay, then I've been speaking with Glenn Smith, constitutional law professor at the school of law. Glenn, thank you.

The Supreme Court agreed Tuesday to an election-year review of President Barack Obama's executive action to allow up to 5 million immigrants living in the U.S. illegally to "come out of the shadows" and work legally in the United States.

The justices said they will consider undoing lower court orders that blocked the plan from taking effect in the midst of a presidential campaign already roiled by the issue.

The case will be argued in April and decided by late June, about a month before both parties' gather for their nominating conventions.

The immigrants who would benefit from the administration's plan are mainly the parents of U.S. citizens and lawful permanent residents.

Texas is leading 26 mainly Republican-dominated states in challenging the Democratic administration's immigration plan.

So far, the federal courts have sided with the states to keep the administration from issuing work permits and allowing the immigrants to begin receiving some federal benefits.

If the justices eventually side with the administration, that would leave roughly seven months in Obama's presidency to implement his plans. "We are confident that the policies will be upheld as lawful," White House spokeswoman Brandi Hoffine said after the court's action Tuesday.

At issue is the Deferred Action for Parents of Americans program, which Obama said in late 2014 would allow people who have been in the United States more than five years and who have children who are in the country legally to "come out of the shadows and get right with the law."

Texas quickly led a legal challenge to the program and has won every round in court so far. Most recently, in November, the 5th U.S. Circuit Court of Appeals ruled in favor of the states, prompting the appeal to the Supreme Court.

Solicitor General Donald Verrilli Jr. said in his court filing that allowing those rulings to stand would force millions of people "to continue to work off the books, without the option of lawful employment to provide for their families."

The administration said Texas and the other states don't even have the right to challenge the plan in federal court. The lower courts decided that Texas does have the right, or standing, to sue because at least 500,000 people living in Texas would qualify for work permits and thus become eligible for driver licenses, the cost of which are subsidized by the state. "Texas would incur millions of dollars in costs," the state said in its brief to the Supreme Court.

The justices also said they would consider whether Obama exceeded his authority under federal laws and the Constitution.

Texas asked the court not to hear the case, but Texas Attorney General Ken Paxton said he was pleased the justices will examine the president's constitutional power to intercede without congressional approval. "In deciding to hear this case, the Supreme Court recognizes the importance of the separation of powers," Paxton said.

Democratic officials and immigrants' advocates praised the court's action. Senate Democratic Leader Harry Reid of Nevada said that "law-abiding men and women continue to live in constant fear of being separated from their children. These families must be allowed to step out of the shadows and fully contribute to the country that they love and call home."

The future of the estimated 11 million immigrants living in the country illegally has been much discussed by Republican and Democratic presidential candidates. Democratic front-runner Hillary Rodham Clinton has pledged to go further than Obama to protect large groups of immigrants from deportation.

Republican candidate Donald Trump has proposed deporting all people who are living in the U.S. illegally, an idea embraced by some GOP candidates and dismissed by others.

Obama said he was spurred to act on his own by Congress' failure to pass comprehensive immigration legislation. An earlier program that is not being challenged, Deferred Action for Childhood Arrivals, shields immigrants brought to the country illegally as children. More than 720,000 young immigrants have been granted permission under that program to live and work legally in the United States.

The White House also has shifted its enforcement actions to focus on criminals, those who pose a threat to national security or public safety, and recent border-crossers.

The change means that people who are here illegally but who are not otherwise violating the law are less likely to face deportation.

About 235,000 people were deported in the federal fiscal year that ended Sept. 30, according to the Department of Homeland Security.

That was the smallest number since 2006 and a 42 percent drop since a record high of more than 409,000 in 2012.

Still, the administration drew criticism from Democrats and immigration advocates for raids this month that resulted in the arrest of more than 120 immigrants from Central America who came to the country illegally since 2014. Those recent arrivals are not among immigrants who would benefit from Obama's plan.

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