The Supreme Court will probably have the final say over whether President Obama’s executive actions on immigration ever see the light of day—and its decision could upend one of the country’s most polarizing political debates, just months before the presidential election.
The Justice Department announced Tuesday that it would ask the Supreme Court to settle a dispute over Obama’s immigration programs, setting the stage for just the sort of election-year drama the justices often say they’d prefer to avoid.
Much like the Court’s 2012 case on Obamacare, the immigration challenge could put the justices in a sensitive position—deciding the future of a deeply polarizing policy just as the country’s partisan fevers are at their highest, with real consequences for millions of people in the balance.
The Court doesn’t have to accept the immigration case, but many legal experts expect that it will. It also wouldn’t have to make a decision before the election. But a quick turnaround at the high court that may be the only hope for supporters of Obama’s executive actions.
“Basically, this is a policy dispute masquerading as a lawsuit,” said David Leopold, a former president of the American Immigration Lawyers Association who represents immigrants and supports Obama’s executive actions.
The case on its way to the Supreme Court is part of a challenge to the Deferred Action for Parents of Americans and Lawful Permanent Residents program, which would allow roughly 4.3 million undocumented immigrants to remain in the U.S. legally.
Republicans have railed against DAPA as a presidential power grab, and its implementation has been blocked in the courts. On Monday, the 5th Circuit Court of Appeals upheld the injunction that has kept DAPA on ice.
The lower court has not ruled on DAPA’s legal merits; both sides agreed to put that debate aside while focusing on whether the program could take effect in the meantime, Leopold said.
DAPA’s supporters largely expected the 5th Circuit to uphold the injunction, but had grown restless over the past few months about how long the Court was taking to issue its decision; the longer the 5th Circuit took, the harder it would be to secure a Supreme Court ruling before Obama leaves office.
And advocates believe the politics of a pre-election ruling, whatever it says, will work in their favor. A ruling for the administration would allow Obama to begin implementing DAPA and could make it harder for a Republican successor to cut off the program, Leopold said, while a ruling against the administration could help reinvigorate the push for a comprehensive immigration bill.
“For the Republicans, it’s terrible. … I don’t see how it helps them either way,” Leopold said.
On the other hand, a Supreme Court ruling upholding the DAPA injunction would largely vindicate Republicans’ claims that the program was an overreach by President Obama. And Hillary Clinton has said she would reach even further.
The 5th Circuit upheld the DAPA injunction Monday partly because it determined that the policy’s challengers had a good chance of succeeding on the merits. The states, led by Texas, had shown that DAPA would hurt them, the court ruled, and were likely to persuade the courts that DAPA’s policy changes fall outside the executive branch’s authority.
Federal law “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization,” the 5th Circuit said.