When I first started practicing law, I handled a case involving a commercial landlord-tenant matter. Counsel for the petitioner commenced a Summary Proceeding in a local Town Court. I knew my client had a right to cure the alleged lease default, but I questioned whether I could get the appropriate relief in Town Court. So my client decided to bring a Declaratory Judgment action in Supreme Court along with a request for a Yellowstone Injunction. At the first hearing before the Supreme Court, counsel for the now defendant (a well-regarded local lawyer by the way) said, “so you’re going to Supreme”. All that to introduce my latest piece.
The U.S. Supreme Court granted the Obama administration’s petition for a writ of certiorari, and will review the case, Texas v. United States, 15-674, which to date has blocked the Obama Administration’s implementation of expanded Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). In addition to the questions presented by the Obama Administration’s petition, the Court also directed the parties to brief and argue the plaintiff-states’ Take Care Clause claim, as follows: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.”
When I read this, I immediately thought I need to be careful what I wish for. The Court is likely to hear the case in April 2016, and make a decision by the end of June.
This of course will create great fodder on the election trail, but I’ll leave that for another day. The real issue now is this fourth question presented.
In asking the parties to address whether President Obama violated his constitutional obligations to enforce the nation’s laws, the Supreme Court raised the prospect of a broad decision that could significantly alter the scope of presidential power in the area of immigration and far beyond.
I’ve written previously about the President’s discretionary authority over immigration matters, including areas related to immigration enforcement and the granting of immigration benefits or privileges (e.g., work authorization). I think it’s worth reminding everyone that President Obama’s administrative action was but the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations. According to the American Immigration Council, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together (including the granting of permission to work while they were here).
Like many of his predecessors, President Obama has also relied on the Immigration and Nationality Act’s (“INA”) definition of “unauthorized alien” (i.e., aliens “authorized to be … employed … by the Attorney General [now the Secretary of Homeland Security]”) in claiming broad authority by the Executive to grant work authorization to aliens whose eligibility for employment authorization is not otherwise addressed by the INA. If the Supreme Court were to find against the Obama administration, this type of Executive discretion could come to a screeching halt. (If we’re going to allow those without status to remain in the United States, even if temporarily, why not allow them to work too and contribute too our economy?)
A finding by the Supreme Court that President Obama violated his constitutional obligations to enforce the nation’s laws could also implicate the original 2012 version of DACA (forget the President’s desire to expand it and create some temporary protections for a new class of aliens). Why? It could be argued that the INA provisions discussed by the Fifth Circuit in Texas v. United States bar the granting of deferred action and permission to work to aliens brought to the United States as children and raised here.
Frankly, I am very concerned that a conservative leaning Court may wish to limit the President’s authority to exercise prosecutorial discretion. History supports the notion that prosecutorial discretion, and specifically prioritizing our nation’s immigration enforcement priorities, has long been considered an executive function. Ultimately, the Supreme Court’s decision could extend far far beyond the world of immigration, and affect any president’s use of executive action.
 The questions presented by the Obama Administration were (a) whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action, (b) whether the Guidance is arbitrary and capricious or otherwise not in accordance with law, and (c) whether the Guidance was subject to the APA’s notice-and-comment procedures. The “Guidance” refers to the Secretary of Homeland Security’s memorandum dated November 20, 2014 directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.
 Interestingly, neither the federal district court nor the Fifth Circuit addressed the plaintiff-states’ Take Care Clause claims. One federal district court has, however, addressed this issue. See United States v. Juarez-Escobar, 25 F.Supp.3d 774, at 788 (W.D. Pa., December 16, 2014) (the Court suggesting that DAPA and the DACA expansion “violate the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, [are] unconstitutional.”).
 The Fifth Circuit majority would probably agree with the Supreme Court. The Fifth Circuit believes that the “miscellaneous definitional provision” does not provide a basis for the Obama administration to grant of work authorization to “millions” of aliens given “Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.” Texas v. United States, 809 F.3d 134, 181 (5th Cir. 2015).
 For what it’s worth, the 2012 DACA program was not at issue in Texas v. United States. It had previously been the subject of unsuccessful legal challenges, including one involving the State of Mississippi. See Crane v. Napolitano, 920 F. Supp. 2d 724, 738-40 (N.D. Tex. 2013).