No announcement yet.

Article: Breaking News: The Supreme Court "Decides" United States v. Texas! By Kevin R. Johnson


  • Article: Breaking News: The Supreme Court "Decides" United States v. Texas! By Kevin R. Johnson

    Breaking News: The Supreme Court "Decides" United States v. Texas!


    The U.S. Supreme Court today issued its long-awaited  ruling in United States v. Texas.  The Court affirmed the Fifth Circuit's decision by a 4-4 vote. opinion.  The result is that the preliminary injunction remains in place and that the expanded deferred action program is on indefinite hold.

    As ImmigrationProf readers well know, the case involved review of a preliminary injunction entered by federal district Judge Andrew Hanen -- who Professor Steve Legomsky has characterized as "out of control" in this case -- and affirmed by a 2-1 U.S. Court of Appeals for the Fifth Circuit.  The injunction put on hold the Obama administration's efforts to implement the Deferred Action for Parents of Americans program (DAPA), announced  in November 2014, as well as expansions to the Deferred Action for Childhood Arrivals program (DACA), which was originally implemented in 2012.

    In a post on SCOTUSBlog, I previously highlighted the pivotal Article III standing issue in United States v. Texas, namely whether Texas and the other states had standing under the U.S. Constitution to challenge the national immigration program.  My fear has been that, if allowed to stand, the Fifth Circuit’s finding that the states have standing based on an the injuries alleged in this case (the costs to Texas of issuing subsidized driver's license to deferred action recipients), to derail discretionary federal immigration enforcement decisions could open the door to the use of litigation in the federal courts for partisan political ends in many controversial areas of law enforcement, from income tax enforcement actions to marijuana prosecutions.   Amanda Frost for SCOTUSBlog summarized the contrasting approaches of commentators to the issue of standing in this case. 

    The oral arguments in United States v. Texas focused on Article III standing and paid no attention to the "Take Care" claim of the state of Texas.  The  states contended that the President in DAPA had violated his constitutional obligation in Article II, sec. 3 that he "take care that the laws be faithfully executed."  At oral argument, there was no questions from the justices on the “Take Care” argument.  The Court previously had ordered the parties to brief the issue. Nor did any of the advocates raise the issue at the oral argument.

    In important respects, United States v. Texas is simply the latest skirmish in the long debate over immigration reform.  Comprehensive immigration reform bills have been debated in Congress for more than a decade, with some versions offering a path to legalization for the 11 million to 12 million undocumented immigrants living in the United States and the various incarnations of the DREAM Act, which would provide relief to undocumented youth.

    It was precisely because of the stalemate in Congress that President Barack Obama announced measured steps in an attempt to reduce some of the hardships faced by undocumented immigrants.  In November 2014, the President announced the “deferred action” program known as DAPA (Deferred Action for Parents of Americans) for undocumented parents of U.S. citizens and lawful permanent residents. The program built on the previous Deferred Action Program for Childhood Arrivals (DACA) program, which was announced in June 2012 and implemented later that summer.   The program recently celebrated its fourth birthday and has provided much-needed relief (although limited in scope) to undocumented immigrants.

    “Deferred action” means that the U.S. government will not focus its immigration enforcement efforts on removing undocumented immigrants who are otherwise law-abiding. It is a kind of prosecutorial discretion routinely employed by government in the enforcement of the law and reflects the setting of priorities in law enforcement.  In this instance, the Obama administration through the new Priority Enforcement Program , which was announced by Department of Homeland Security Secretary Jeh Johnson in November 2014 with the expanded deferred action programs,  has decide to devote its immigration enforcement resources on noncitizens convicted of crimes -- and thus to focus removal efforts on those noncitizens most likely to pose a threat to public safety.  

    Deferred action is no path to legalization or citizenship and should not be mistaken as some kind of “amnesty.” It instead is a temporary reprieve from removal. One important aspect of the program has been to allow for the issuance of work authorization to deferred action recipients, which allows them to work lawfully in the United States.  Only Congress could create a durable path to legalization or citizenship for undocumented immigrants. Texas and 26 states do not agree with the administration’s policy choices. They sued in federal court to put the Obama immigration plan on hold. A District Court judge in south Texas barred its implementation. A divided panel of the Court of Appeals upheld that ruling.

    In United States v. Texas, the Supreme Court had the opportunity to consider the lawfulness of the deferred action programs. The untimely death of Justice Antonin Scalia, and the Senate’s refusal to move on the confirmation of Merrick Garland, complicated matters and meant that only eight justices on the court.   A 4-4 split means that the lower court injunction prohibiting the implementation of Obama’s executive action.

    The case raised an array of technical legal issues. The two central are whether the states have what is known as “standing” under Article III of the U.S. Constitution to sue in federal court and whether the Obama administration failed to comply with the procedural requirements of the Administrative Procedure Act in adopting the new program.

    Behind the narrow legal issues, what truly is at the core of the dispute is the debate over immigration reform.  Congress still needs to address immigration reform. Deferred action does not offer permanent relief for the millions of undocumented immigrants like that which would be provided by many comprehensive immigration reform proposals. Indeed, a future president – a President Donald Trump, for example – might try to deport any deferred action recipients.  Immigration reform therefore is likely to continue to be a big issue in the 2016 presidential campaign.

    As United States v. Texas makes clear, the nation desperately need meaningful reform of the immigration laws.  The current comprehensive immigration law, the Immigration and Nationality Act of 1952, was forged at the height of the Cold War and is nothing less than antiquated and ill-fitted to addressing the contemporary issues of global migration.  To the extent that there is any consensus on immigration, it is that we need to reform the current laws. 

    In thinking about that reform, the nation should be realistic.  As most knowledgeable observers agree, the mass deportation of the millions of undocumented immigrants who are parts of our communities simply is not feasible. Consequently, some kind of path to legalization of undocumented immigrants is needed. Most informed observers further agree that reform of the legal immigration provisions of the laws is long overdue. Last but not least, many Americans believe that we need better enforcement measures.  I myself am not sure that the nation needs more enforcement at this time.

    In the end, the nation needs to think about how we get to the end game of true, meaningful and lasting immigration reform that works.

    SCOTUSBlog will be posting commentary on the decision.  The ImmigrationProf blog will be posting responses as well.  Stay tuned.

    This post originally appeared on Law Professor Blogs © 2014-2016 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.

    About The Author

    Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    • Guest's Avatar
      Guest commented
      Editing a comment
      Why didn't President Obama propose this when he had control of Congress in 2009-2010? To me, it appears he didn't really care about the issue until it was a method of getting back at republicans.
    Posting comments is disabled.





There are no tags yet.

Latest Articles


  • Article: Birthright Citizenship Is Not A Legal Assumption; It
    Last week on Fox News, Tucker Carlson said,
    08-21-2018, 01:24 PM
  • Blogging: Trump's "National Security" Abuses: First, Muslim Ban; Next, Security Clearance Revocation.. By Roger Algase
    Trump's "National Security" Abuses: First, Muslim Ban; Next, Security Clearance Revocation. Trashing Immigrant Rights Endangers Freedom of All Americans.

    CNN reports on August 21 that 175 former US officials have denounced Donald Trump for revoking the security clearance of former CIA director John Brennan for speaking out in opposition to Trump.

    Presidential use of "national security"
    08-21-2018, 12:54 PM
  • Article: The EB-5 Immigration Program and the Investors Process By H. Ronald Klasko

    If you are having difficulty viewing this document please click here.

    08-20-2018, 08:15 AM
  • Article: Immigration Judges’ Union Fights for Judicial Independence By Karolina Walters
    Immigration Judges’ Union Fights for Judicial Independence by Karolina Walters The National Association of Immigration Judges (NAIJ), the union that represents the nation’s immigration judges, is challenging the government’s decision to remove an immigration judge from a well-known case and replace him with a judge who immediately ordered the immigrant in the case deported. NAIJ’s grievance addresses the treatment of one immigration judge, but its resolution will have implications for judicial independence throughout the entire immigration court system. The grievance was filed on behalf of Philadelphia-based immigration judge Steven A. Morley, who was presiding over the case of Mr. Reynaldo Castro-Tum. Castro-Tum’s case rose to national importance earlier this year when Attorney General Jeff Sessions chose to refer the case to himself to reconsider the Board of Immigration Appeals’ previous decision in the case. In reconsidering the decision, Sessions effectively eliminated judges’ use of administrative closure, a docket management tool. Sessions sent Castro-Tum’s case back to Judge Morley, noting that the immigration court order Castro-Tum removed if he did not appear at his next hearing. Castro-Tum did not appear at the next hearing. However, Judge Morley continued the case to resolve whether Castro-Tum received adequate notice of the hearing. Due process requires, at a minimum, that an individual be given notice of proceedings and an opportunity to be heard by a judge. But before the next hearing could take place, the Executive Office for Immigration Review (EOIR) replaced Judge Morley with an Assistant Chief Immigration Judge who ordered Castro-Tum removed when he did not appear at court again. In their grievance, NAIJ asserts that the decision to remove Judge Morley from Castro-Tum’s case and reassign many other cases from his docket resulted in unacceptable interference with judicial independence. The grievance specifically claims that EOIR’s actions violate immigration judges’ authority under the regulations to exerci...
    08-17-2018, 11:12 AM
  • Article: Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico By Sophia Genovese
    Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico by Sophia Genovese The Trump Administration is seeking to create and implement a safe third country agreement with Mexico . Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement , which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers . The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections. As reported by Human Rights First and Amnesty International , 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded , and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum , of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, di...
    08-16-2018, 02:32 PM
  • Article: Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence By Eugene Goldstein, Esq.

    Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence


    On August 9, 2018 USCIS published a “Policy Memorandum” restricting the 20-year-old calculation of Duration of Status (D/S) for F-1, J-1 and M-1 entrants (and their derivative families).

    USCIS also published an announcement (hereinafter “announcement”) “USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors , and a general discussion “Unlawful Presence and Bars to Admissibility” ...

    08-15-2018, 12:57 PM