Time and again, the Obama administration has stepped forward with a new initiative on immigration. Time and again, those efforts have encountered difficulty, and time and again the White House has thrown up its hands, said it has done all it can, and tried to move on. And each time, immigration advocates have reacted furiously, successfully pressuring the administration to take back up the banner.
That recurring pattern has led to major shifts in immigration policy over the last three years. When the DREAM Act died in Congress, President Obama instituted a policy—Deferred Action for Childhood Arrivals, or DACA—that achieved many of the same goals. When immigration reform foundered in Congress, Obama unveiled an executive action that expanded DACA. (Actually, he promised to do so before the 2014 midterm elections, then flinched, then issued the rule after the election.)
Once again, Obama’s initiatives have hit a rough stretch, though. First, in February, federal district Judge Andrew Hanen ruled against the program in a suit brought by Republican officials in 26 states. In addition, he put an injunction against it, meaning the administration couldn’t move forward with it while the challenge was ongoing. The administration appealed Hanen’s decision to the Fifth Circuit, and it separately made an emergency request to the circuit to remove the injunction. On Tuesday, a panel of judges refused to stay the injunction, and on Wednesday the administration quietly said it wouldn’t appeal that decision to the Supreme Court.
But something strange has happened: Rather than erupt in anger at the White House’s concession, advocates have mostly lined up behind it. Why is this time different?
Part of it is legal strategy. Part of it is politics. But perhaps the largest part of it is a simple matter of trust: For the first time in a long time, the relationship between the White House and immigration advocates seems to be going well.
“Obviously, our experience has been like pounding our heads against the wall for the first six years. Increasingly, advocates were seen as opponents rather than folks they could partner with,” said Frank Sharry, the executive director of pro-reform group America’s Voice. But now, Sharry said of Obama, “He’s earned more trust.”
The low point in the relationship came in September 2014, when Obama—having promised executive action before the election—changed his mind, bowing to pressure from Democrats in tough races who worried the move would endanger them. Advocates were livid. (Democrats were still pummeled at the polls in November.)
Maybe the relationship just had to hit rock bottom to recover. Advocates were jubilant when Obama finally moved forward in November, and the legal challenge to the rule offered a chance for the White House to demonstrate good faith once again. When Hanen ruled against the administration, the administration appealed the decision to the circuit court. But it also requested an emergency stay of the injunction, asking the court to let it move forward with the changes while the legal challenge moved on.
“If they hadn’t gone forward after Hanen imposed the original injunction, I think things would have blown up,” Sharry said. “It was at a moment when we were like, can we trust these guys? DOJ was hemming and hawing about whether they should try to overturn the stay. The White House said, advocates want action. We felt heard. It was a unified call, and they responded.”
When the Fifth Circuit weighed in, there was a renewed call in some quarters for the Justice Department to again appeal, this time to the Supreme Court. The National Immigration Law Center made a particularly forceful case for action. But this time around, many leading advocates seem content to follow Obama’s lead and assume good faith on the White House’s part.
“I’ve gotten no indication that the administration is trying to lift their foot up off the gas,” said Ali Noorani, executive director of the National Immigration Forum.
There are also political and legal motives shaping the way that advocates have responded. Appealing the circuit’s decision on the injunction would send the case to the particular Supreme Court justice who is responsible for the Fifth Circuit: Antonin Scalia. No one thought they’d have much luck with the arch-conservative jurist, and they worried that failure to get the stay lifted would look like a defeat, even if it didn’t deal with the merits of the case.
Instead, the Justice Department will focus on appealing Hanen’s decision, with arguments set for early July before the circuit court. The administration could face a tough battle there, whether they get the same panel that rejected the stay, 2-1, or another one. The Fifth Circuit is often described as the nation’s most conservative—one reason opponents of Obama’s rule opted to file their lawsuit where they did. Whatever the outcome, the case will likely be appealed to the Supreme Court.
“Tactically speaking, it makes much more sense to focus on the full appeal,” said David Leopold, a former president of the American Immigration Lawyers Association who works with advocates. “Given the Fifth Circuit and given the political nature of the case, they’re going to the Supreme Court in the strongest position possible.”
The pro-immigration side hopes that the Supreme Court, assuming it takes the case, could put the issue of immigration at center-stage right as the election heats up. If the Court heard the case in the next term, its decision might be delivered late in the term, perhaps in June 2016.
Advocates hope that such a decision would make candidates of both parties, but particularly Republicans, take a stand on a specific immigration question. Rather than simply being able to say that they support comprehensive immigration reform—a vague statement—they will be asked what their views are on a clear legal matter, noted Clarissa Martínez-De-Castro, deputy vice president of the National Council of La Raza. The issue plays in down-ballot elections, too. There are Senate elections in several states with large Latino populations that are expected to be close, including Illinois, Florida, Nevada, and Colorado.
But an unfavorable decision for the administration could place Hillary Clinton in a tough spot. Clinton, the presumptive Democratic nominee, impressed the pro-reform crowd when she said she would have gone further than Obama did. (The president has walked a tight-rope, arguing that what he did was legal but telling advocates that he pushed his authority to the legal limit.) If the justices slap down Obama’s argument, Clinton will have to answer questions about why she believed that even bolder action was justified, and about how much she can achieve on her own without congressional support.
Moreover, it would be yet another setback for immigration reformers. But that’s months away. For now, at least, they feel like they have allies in high places.