By Attorney Farhad Sethna © 2016
In a terse “order list” dated January 19, 2016, the United States Supreme Court granted certiorari in case number 15-674, “United States, Et Al. v. Texas, Et Al“.
The entry in the Supreme Court’s order list states:
The “Take care” clause in the U.S. Constitution requires the President to take due care while executing laws. This clause ensures that the President executes a law as intended by Congress.
Article II Section 3 of the US Constitution lists the duties of the president. Among these is the little snippet known as the “Take Care” clause. The specific wording in the Constitution reads (I have italicized the “Take Care” clause for easier identification):
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
It is expected that the Supreme Court will set a briefing schedule following which there will be oral arguments. A decision is expected sometime in June 2016.
What does this mean?
This means that if the executive action is granted, the Obama administration will have approximately 6 months before President Obama’s term expires in January 2017. In this time, the administration will have to fire up the DACA/DAPA program, accept and process applications, and grant or deny applications. A incoming president will have the option of continuing the program, or stopping it, as it is based on executive action.
On the other hand, if the Supreme Court strikes down the executive action, there will be no new DACA/DAPA program. There is also a possibility that the earlier DACA which is in affect and has granted DACA status to approximately 800,000 young dreamers, may also be stricken.
The case boils down to the extent the president can exercise his executive authority. Has Obama “taken care” to ensure that the laws of the USA have been faithfully executed?
What’s my analysis?
The State of Texas has argued that the President is not “taking care” to enforce the immigration laws of the USA. However, past Presidents have offered various forms of amnesty to aliens including executive orders to shield aliens from natural and political strife. For example, in recent history, president George H. W. Bush (Bush 41), issued a wide ranging executive order protecting Chinese citizens who were present in the USA when the Tiananmen Square massacre occurred. Other presidents have granted and issued TPS (Temporary Protected Status) for aliens present in the USA with no such objection from either party.
Thus, there are two well established precedents that support Obama’s executive action:
First, presidents before Obama have issued executive orders. They were either never challenged, for the most part, or upheld when they were. Obama has issued other, unchallenged executive orders.
Second, past presidents have also issued “signing orders”, limiting or explaining how specific laws passed by Congress would be interpreted and implemented. Again, this practice and policy has not been successfully challenged.
From another standpoint, the DHS (Department of Homeland security) has the legal authority to issue “prosecutorial discretion” or “deferred action” on a “case-by-case” basis aliens who are unlawfully present in the USA. The President has simply extended that authority to an entire class of people. Yet, this extension is not without safeguard: every applicant will have to meet the requirements, file an application and undergo a background check. (More on the DACA-DAPA requirements elsewhere on my blog). This is not “Amnesty” or a “Path to US Citizenship” as detractors argue – this is simply a procedural technique to process a huge number of possible cases as expeditiously as possible.
Finally, the president’s past DACA action was not challenged on the same ground. Its therefore curious why now, in an election year, the challenge would be so vociferous. Those who can read between the lines know the answer.
My analysis: I predict – given the facts and existing law and precedent at this time – that the Supreme Court will uphold Obama’s executive action.
Stay tuned for further and other important announcements on this critical election year immigration issue!
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.