Two months ago, President Barack Obama gambled that his immigration policies had a better chance of winning a majority on the Supreme Court than in Congress. It’s a bet he never should have made. Now that the court has accepted it, he needs to win – not for his own sake but for that of future presidents and the millions of immigrants it would help.
The Supreme Court agreed on Tuesday to hear the Obama administration’s appeal of a case putting its immigration policy on hold. The policy allows immigrants who are in the country illegally but have children who are citizens or green card holders to remain in the country and apply for work permits – provided they have been in the country for five years and stayed out of trouble with the law. There are about 5 million such residents.
Now, if the Supreme Court finds that the attorneys general who brought the case have standing to sue, it will have two questions to answer. The first is whether the Obama administration should have undertaken a formal rule-making process, with a notice and comment period, before carrying out this change. The second is whether the president overstepped his authority by ignoring existing law.
The second question is more consequential. The Constitution requires the president to “take care that the laws be faithfully executed.” The trouble is, it would be impossible – and economically disastrous – to attempt to deport the 11 million people residing here illegally.
Furthermore, the courts have never curtailed the executive branch’s authority to manage immigration.
The court’s decision will inevitably split the parties and keep immigration at the center of the presidential debate, which is right where it belongs – because whichever way the Supreme Court rules, legislation remains necessary to fixing the problem.