Immigration Policy at Home—United States v. Texas and the Bounds of “Executive Action” Jadie Mims

Immigration Policy at Home—United States v. Texas and the Bounds of “Executive Action”

Jadie Mims



In an effort to reform the current, admittedly dysfunctional, United States immigration policy, President Barack Obama in November 2014 announced a plan to develop methods for receiving, documenting, and eventually legalizing large numbers of immigrants.[1] Sharing his mounting frustration with the refusal of a Republican-led House of Representatives to even allow a vote on a bipartisan bill which had already passed in the Senate, the President announced three separate initiatives under which he would attempt to bypass traditional legislative means to alter our immigration landscape.[2] The first and second of these proposals—promising to bolster security at the southern border in an effort to combat illegal immigration from Mexico and South America, while making it easier for “high-skilled immigrants” to come to the country legally—have not been as harshly criticized as the third. In what would eventually provide the basis for an important immigration case before the Supreme Court this term,[3] the President’s third initiative explicitly committed to “take steps to deal responsibly with the millions of undocumented immigrants who already live in our country.”[4]

The practical implication of this third action would essentially allow undocumented immigrants meeting two criteria—“they have children who are U.S. citizens or lawful permanent residents… and they have been in the United States at least since January 2010—to apply for a program that would allow them to stay in the country for three years and work here legally.”[5] However, this policy has never been implemented.[6] Instead, the State of Texas (along with twenty-five other states) sued in federal court, asking a federal trial court judge to enjoin the application of the law.[7]

The central legal issue began as a question of whether President Obama had the authority to institute such a program, or if doing so would be an excessive breach of his executive power.[8] Following trial last year, district judge Andrew S. Hanen (S.D. Tex.) determined that the President’s action was excessive, and ultimately issued an order enjoining the implementation of the President’s “removal priorities.”[9] In striking the action, Judge Hanen framed the program as one “designed to provide legal presence to over four million individuals who are currently in the country illegally… enabl[ing them] to obtain a variety of both state and federal benefits.”[10] On appeal to a three-judge bench of the Fifth Circuit Court of Appeals, Judge Jerry E. Smith—writing for the 2-1 majority—elected to affirm the district court.[11] The United States petitioned to the Supreme Court in November 2015 for a writ of certiorari,[12] which the Court granted in January 2016.[13] Arguments will “almost certainly” be presented before the Court in later April 2016.[14]  Though there are four questions before the Court in total, only one is truly important to our immigration inquiry for purposes of this note—again, the question answered by both lower courts in the affirmative as to whether the Obama administration had breached its authority in its issuance of the proposed immigration policy.[15]

As noted by the Fifth Circuit’s majority, “[i]n specific and detailed provisions, the [Immigration and Nationality Act of 1965] expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present and confers eligibility for ‘discretionary relief allowing [aliens in deportation proceedings] to remain in the country.’”[16] The majority thus believes that Congress holds the power—not the President or Executive Branch—to determine what distinct classes of people should be deemed lawful and unlawful.[17]Alternatively, the dissenting judge argued that, because the DHS is only granted an annual appropriation of about 3.5 percent of what it would cost to actually remove undocumented immigrants from the country, the agency is in fact forced to prioritize what it will and will not pursue.[18] By this logic, the deferred action decisions would be nothing more than “quintessential exercises of prosecutorial discretion”—not an unconstitutional breach of the President’s executive power.[19]

Though the administration concedes that it is the duty of the legislature to create immigration law,[20] it claims Congress “has given the executive branch discretion to make decisions about immigration and deportation, including who gets to stay in the country.”[21] Aligning with the Fifth Circuit’s dissent, it asserts that because existing immigration law subjects such a huge number of undocumented immigrants to potential deportation, the insignificant scope of the DHS appropriation is in itself a “tacit acknowledgement by Congress of the executive branch’s discretion to prioritize which immigrants should be deported.”[22] The States, on the other hand, argue that “Congress intended for that discretion to be exercised on a case-by-case basis, rather than by enacting a sweeping policy that will allow four million people to stay in the country and work here.”[23]

As the administration argued in its petition for a writ of certiorari,[24] the Court’s refusing to hear arguments on this case would have had far-reaching implications. Now, with the petition granted and the case soon heading into arguments before the Court, it is readily apparent that an affirmation of the lower courts’ ruling would have the same effect. Upholding the nationwide injunction against the enforcement of President Obama’s proposed immigration plan “bars approximately 4 million parents—who have lived in this country for years, would pass a background check, are not priorities for removal, and have ‘a son or daughter who is a U.S. citizen or lawful permanent resident’—from requesting deferred action… and receiving authorization to work lawfully.”[25]

The reality of the situation is this: despite the States’ argument (and the lower courts’ politically-motivated affirmation[26]) that the Obama administration is overstepping its legal authority in pushing this change in immigration policy, Congress’s significant underfunding of DHS’s effort to deport undocumented immigrants necessitates a line being drawn between those immigrants that should be allowed to stay in the country and those that should not. As the Court recently explained in Arizona v. United States, “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.”[27] Congress chose to allow the DHS discretion in choosing how to allocate its lump-sum appropriation,[28] and the President’s setting forth a plan for how the Department could best utilize that money is not an abuse of his executive power. This is outlined in detail in Judge King’s dissent to the Fifth Circuit opinion,[29] and should be apparent to the Court in the upcoming months. Being the more sensible—and again, less politically motivated—view, I believe the eventual result should be to overturn the Fifth Circuit’s affirmation of the district court’s imposed injunction.



[1] Barack Obama, U.S. President, Address to the Nation on Immigration, (Nov. 20, 2014), available at

[2] Id.

[3] United States v. Texas, No. 15-674 (U.S. Supreme Court)

[4] Obama, supra note 1.

[5] Amy Howe, Court will review Obama administration’s immigration policy: In Plain English, SCOTUS Blog (Jan. 19, 2016, 4:39 PM),

[6] Id.

[7] Id.

[8] Id.

[9] Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015).

[10] Id. at 604.

[11] Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

[12] Petition for Writ of Certiorari for Defendant-Petitioners [hereinafter Petition for Writ of Certiorari], United States v. Texas (2015) (No. 15-674).

[13] Howe, supra note 6.

[14] Id.

[15] See Id.

[16] See Texas v. United States, 809 F.3d 134 at 179 (quoting Arizona v. United States, 132 S. Ct. 2492, 2499 (2012)).

[17] See Id at 165-167.

[18] Id. at 191.

[19] Id. at 189.

[20] See Petition for Writ of Certiorari, supra note 12 at 2 (quoting Truax v. Raich, 239 U.S. 33, 42 (1915), that “the ‘authority to control immigration * * * is vested solely in the Federal Government.’”).

[21] Howe, supra note 5.

[22] Id.

[23] Id.

[24] See Petition for Writ of Certiorari, supra note 12.

[25] Id. at 33.

[26] See Ed Kilgore, It’ll Get Worse Before It Gets Better on Immigration Actions, Washington Monthly (Apr. 13, 2015),

[27] 132 S. Ct. at 2499 (2012).

[28] See Petition for Writ of Certiorari, supra note 12 at 4.

[29] See Texas v. United States, 809 F.3d at 189.


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