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Supreme Court Blog

This past Tuesday, the United States Supreme Court agreed to hear Texas v. USA, a case that could be the most important case of 2016 - and not because this case comes in an election year.

The Background:

In November 2014, President Obama issued an executive order to the Department of Homeland Security (DHS) that was intended to impact millions of individuals that are in the country without authorization. The purpose behind the order was the recognition that the Federal government does not have the money and other resources to hunt down, arrest and then deport everyone in the country that is here without authorization (even if the government wanted to). Consequently, Obama ordered the DHS to focus its enforcement efforts against certain groups of people, such as those with serious criminal backgrounds. In other words, since DHS can't arrest and deport everyone, they should go after those people that everyone agrees shouldn't be in our country. Makes sense!

Despite what is being spewed from conservatives and other right-wing organizations, Obama's order does not let everyone else "off the hook." For practical purposes, for everyone else, the order essentially means the DHS will come looking for them later - they're just not a priority right now. As a result, understanding that this order would mean that there will be millions of undocumented people in the country that the DHS is not targeting at this time, the order allows these people to come out of the shadows and apply for permission to work legally. Of course being granted permission to work does not give these millions of people any lawful status, but it does create several huge benefits both for the individual and our country.

First, by having to apply for the permission to work, the person is having to provide all of their contact information to the government and if they want to maintain this permission, they will need to constantly file a new application and thus keep their contact information up to date. If the government is ever going to seek to have these people removed, isn't it better to know where they live? Makes sense!

Second, being granted a work authorization permits the person to apply for a social security number. This in turns allows the person's employer to take out taxes from the person's paycheck. The result is now there would be hundreds of thousands of people (millions?) now working and paying taxes. Before, countless of these individuals were being paid under the table by dishonest employers and never paying a dime in taxes. Makes sense!

Third, in most states, having the work authorization and social security number permits the individual to obtain a driver license. Let's face it, whether the undocumented individual has a driver license or not, chances are, they're driving anyway. By permitting that individual to get a driver license, the particular state will also have the individual's address. Further, the individual would be permitted (and probably required) to get auto insurance. Makes sense!

Who Qualified:

Among other specific instructions to the DHS, the emphasis of the order was to permit undocumented parents of U.S. citizens or legal permanent residents that could prove they had been the U.S. for a certain period of time and had not been convicted of certain crimes to come forward and expose themselves to the immigration authorities. In doing so, they were required to apply for a work authorization and by extension a state issued ID or driver license. As planned, it was intended that the program would be implemented in early 2015.

The Problem:

Republican lead governments from 26 states sued the Federal government in an attempt to stop the order from going into effect. Lead by Texas Attorney General Ken Paxton (currently under indictment for two felonies involving securities fraud), the states filed suit in the Federal Court in Brownsville, Texas. Given the national implications for this case, why was the case filed in, of all places, a town of 180,000 located on the border with Mexico? The answer is obvious: these conservative politicians wanted the case to be heard by a conservative judge.

Ordinarily, when a lawsuit is filed in Federal Court, the case is randomly assigned to one of the judges in that jurisdiction. Here the one place they could ensure that the case would be set before a conservative judge was to file it in Federal Court in Brownsville since, at the time, there was only one active judge in that court: Judge Andrew Hanen, a George Dubya appointee.

In February 2015, Judge Hanen issued an order preventing the Executive Order from going to effect. To be clear, Judge Hanen did not decide that Obama's Order was illegal. He merely decided that the Order should not go into effect for the time being. The Federal Government appealed Judge Hanen's decision to the Federal 5th Circuit Court of Appeals. The widely recognized conservative 5th Circuit decided that it would not overturn Judge Hanen's decision. As a result, the Federal Government appealed the 5th Circuit's decision to the U.S. Supreme Court and on Tuesday, the Court announced that it would decide the issue.

The Issue:

It is well established that government entities have the authority to exercise "prosecutorial discretion," which is a fancy way of saying that the government has the power to decide who they are going to arrest, prosecute or deport and who they are not. In its simplest form, it is the same authority your local police officer has when he decides not to give you a speeding ticket and lets you off with a warning.

Of course there are several distinct problems that the Republicans complain about, but when boiled down, their argument is essentially that President Obama doesn't have the authority to make such an order. Instead, they argue, Obama should have to go through Congress to implement such a program. Put another way, the Republicans are arguing that Obama, on his own, does not have the authority to exercise the discretion to pick and choose who the DHS should attempt to deport. The Republicans also argue that even if Obama has such authority (which of course he does), that implementing the Order will cause economic harm to the individual states by, for instance, having to process thousands of new driver license applications.

In announcing that it would hear the case, the Supreme Court told the parties that they needed to address whether Obama's Order violates the "take care clause" of the Constitution. This is the clause that requires the President to execute the laws of the U.S. However, the question is how far does this requirement go and what discretion does the President have to take other actions in conjunction with executing the laws? This particular issue was not argued in Judge Hanen's court or the 5th Circuit. Thus, the Supreme Court is truly making the case a purely Constitutional question. Common sense dictates that the President has some discretion in deciding the cost/benefit of apprehending and deporting every person that is in the U.S. illegally. No doubt the President will argue that the states do not have the power to interfere in his authority to execute Federal immigration laws. On the other hand, the states will argue that the President may have some discretion, but that he doesn't have the authority to not only award them lawful presence but also to give them permission to work.

The Supreme Court will probably hear oral argument around April and should make a decision around June - mere months before the political conventions of both parties. Regardless of the Court's decision, it will be big news and certainly have an immediate impact on millions of people - the office of the President being one of them.

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