Months after President Barack Obama announced sweeping immigration actions, new doubts are emerging as to when — if ever — the measures will take effect.
The Obama administration said on Wednesday it will not ask the United States Supreme Court to allow the controversial executive actions to move forward, opting instead to wait for a lower court to decide on whether the new rules can go into effect.
If that court rules in Obama’s favor, the millions of undocumented immigrants who could benefit from the program would be able to start applying for delayed deportation by this summer. But if it decides the injunction can stand, it could be years before Obama’s immigration actions are realized.
To the frustration of Obama and his allies, the rules, which include broad deportation protections and new work permit guidelines, have been stalled since February in a court battle initiated by Republican governors. By the White House’s estimate, nearly 5 million undocumented immigrants who would have been eligible for the expanded deferral program are left in the lurch.
On the U.S. Citizenship and Immigration Services website, where potential applicants can check their eligibility for delayed deportation, a disclosure blares in red lettering: “Due to a federal court order, (the agency) will not begin accepting requests … on February 18 as originally planned.”
No new start date for the program is offered.
With only a year-and-a-half left in his presidency, Obama is facing a ticking clock on enacting what many of his aides and supporters had hoped would form a major part of his domestic legacy. With legislative immigration reform all but inconceivable heading into a presidential election, new doubts are being raised as to whether Obama’s actions will be in place by the time he leaves office in January 2017.
The administration said on Wednesday it wasn’t asking the Supreme Court to reverse a decision by a federal appeals panel that on Tuesday refused to lift a hold on the immigration actions.
“The Department of Justice is committed to taking steps that will resolve the immigration litigation as quickly as possible in order to bring greater accountability to our immigration system by prioritizing deporting the worst offenders, not people who have long ties to the United States and who are raising American children,” said Patrick Rodenbush, a Justice Department spokesman. “The department believes the best way to achieve this goal is to focus on the ongoing appeal on the merits of the preliminary injunction itself.”
A senior administration official said that even if the Supreme Court had ruled in Obama’s favor — allowing the immigration actions to go forward — there would still be a level of uncertainty among immigrant applicants as to the standing of the program. Since oral arguments are expected on the original injunction in July, this time by a different panel of the same Fifth Circuit Court of Appeals, the injunction could have been put back into place if that panel decides to uphold it.
Ultimately, the official said, the timing of a Supreme Court decision would have roughly aligned with a ruling from the Fifth Circuit, making it more logical to focus the attention of administration lawyers on the Fifth Circuit argument.
The administration has not ruled out going to the Supreme Court if the injunction is upheld by the Fifth Circuit after the July arguments.
Even if the courts do rule in Obama’s favor, his immigration actions aren’t likely to take effect for months — if not years.
Stephen Yale-Loehr, a Cornell University Law School professor, said even as the injunction on Obama’s immigration actions remains in place, the real test will come when the merits of the actual lawsuit from the Republican governors are heard in court.
“That could be a few years down the road, after a trial,” he said.
That delay, according to some legal experts, shouldn’t have come as a surprise to the White House.
“The administration had to anticipate that this was a possibility,” said Adam Cox, a law professor at New York University who signed a letter alongside nine other legal experts in November arguing Obama’s immigration moves were within the President’s legal authority.
“If you look around, this is a recurring pattern with any major policy disagreement—it gets translated into high stakes litigation,” he said.
That was the case with Obama’s health law, which he signed in 2010. The Supreme Court is currently considering a challenge that, if successful, would strip Obamacare of federal subsidies — a central facet of the measure. But unlike the immigration actions, Obamacare has mostly gone into effect already, and even Republicans admit a legal victory in their case could be difficult politically if it means stripping Americans of affordable health care. A success against the immigration moves wouldn’t carry that weight.
Among the actions Obama announced in November was an expansion of a program first announced in 2012, which allowed certain young undocumented immigrants who were brought to the United States by their parents to remain in the country without fear of deportation. Last year’s actions extended that protection to a wider swath of immigrants, including the parents of American citizens or lawful residents.
The White House took pains to demonstrate the legal underpinnings of the new rules, including distributing the letter from Cox and other law professors stating the actions “are exercises of prosecutorial discretion that are consistent with governing law.”
Obama, delivering an address to the nation from the White House East Room, said his actions “are not only lawful, they’re the kinds of actions taken by every single Republican President and every single Democratic President for the past half century.”
Those assurances, however, did little to prevent what many saw as an inevitable challenge to the legality of a major policy change that Congress wasn’t able to approve.
“I think the current developments are an indication of how far a group of politicians is willing to go to settle a score with the President, even if it means losses in revenue and denying relief to millions of families in their very own states,” said Clarissa MartÃnez-De-Castro, the deputy vice president of the National Council of La Raza, the Hispanic advocacy group.
“The legal process will have to follow its course, just like many misguided anti-immigrant measures already have,” she said.
Hillary Clinton, who is pursuing the 2016 Democratic presidential nomination, has said she would go even farther than the President on immigration reform, though it’s unclear quite how. On Wednesday, she tweeted her support for his actions: “5th Circuit is wrong on immigration. @POTUS followed precedent, took steps for families when GOP House wouldn’t. Must continue the fight. -H”
