Republicans have threatened to sue to block President Obama’s administrative decision not to deport some young illegal immigrants. Even House Speaker John Boehner (R-OH) has questioned whether the move is constitutional. But the Supreme Court decision Monday in the Arizona immigration case suggests Republicans may have a difficult time prevailing in court.
The court’s 5-3 decision to strike down major pieces of Arizona’s immigration law emphasized the “broad discretion” the federal government has in choosing which migrants to target.
“A principal feature of the removal system is the broad discretion exercised by immigration officials,” wrote Justice Anthony Kennedy, the author of the opinion. “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
“Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime,” Kennedy’s majority decision continued. “The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.”
Crystal Williams, executive director of the American Immigration Lawyers Association, told TPM the language in Kennedy’s opinion suggests the Supreme Court believes Obama acted within his power.
“Quite honestly I think it directly addresses it,” she said. “This is the court saying that what the president has announced and has been doing is OK.”
Williams added that the language in the Arizona v. U.S. opinion is not binding with regard to Obama’s relief for DREAM-eligible youth, because the ruling was on a different issue. “But it’s basically a signal from the court on how it would rule on such a thing. So it’s important language,” she said. “Particularly if you take it with Justice Scalia’s screed from the bench, it’s clear that this was a matter of discussion among the justices.”
Asked whether the development affects Boehner’s view, his spokesperson said, “No.”
Justice Antonin Scalia’s scorching dissent pointedly attacked Obama for easing up on deportations, arguing that it further validated Arizona’s right to crack down on illegal immigrants if the U.S. government would not. But even Scalia said the executive branch has supremacy on immigration — he simply argued Arizona was helping, as opposed to violating it.
A Democratic aide said the notion that Obama’s move is unconstitutional “has been completely undercut by the Supreme Court’s decision on SB-1070 yesterday. Add this to the list of huevos rancheros on your face moments for the GOP.” The aide isn’t alone in that view.
“Due to limited resources, every executive — state, federal, municipal — must make choices about how aggressively to enforce the law,” said UCLA constitutional law professor Adam Winkler. “Cities don’t uniformly ticket every car that parks illegally. States don’t lock up everyone who ever commits a crime. And the federal government simply can’t use its limited funds to enforce every immigration violation without costs to other, more important laws.”
Scalia’s anger mirrors the Republican pushback against Obama’s shift. Senate Minority Whip Jon Kyl (R-AZ) told Bill Bennett’s radio show Tuesday that if the president opts to “simply not enforce that law, the primary remedy for that is political.” But he added that “if it’s bad enough and if shenanigans are involved in it, then of course impeachment is always a possibility.”
Regardless of the Arizona opinion, Williams said the GOP threats to sue do not have merit.
“None whatsoever,” she said. “It’s pure politics — screaming that it’s unconstitutional is pure politics. President after president has done things along these lines. That [Obama’s] is on a larger scale than others doesn’t change the fact that he has the authority to do it.”
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.