Today, the Supreme Court will hear oral arguments in United States v. Texas, the challenge to the Obama administration’s “deferred action” immigration plan. The Court could decide this case in a number of ways, some very wrong and some less so. But there’s only one really right way to handle it: Grab this stinker by the collar, frog-march it out of the courtroom, and give it a good swift kick down the Court’s majestic front steps.
That’s because this case should never have been heard; this judgment should never have been entered; this injunction should never have been issued. The human and policy implications of the case are, of course, huge. But it also has the potential to not-so-subtly skew the workings of the nation’s federal system, further enfeebling Congress and empowering federal judges to play philosopher king at the expense of self-government.
The case was brought by the state of Texas, which objects to the administration’s two programs—announced in 2014—to regularize deportation procedures. As many as 11 million people in the United States are subject to deportation; Congress, however, provides funding to remove only about 400,000—or less than 4 percent—of them a year. As a result, for many years the Department of Homeland Security’s Immigration and Customs Enforcement (formerly the Immigration and Naturalization Service) has focused on undocumented aliens who have criminal records or who otherwise pose a threat to the United States. In 2014, the homeland-security secretary spelled this policy out in two “guidance” memos, announcing that some undocumented people who are not high-priority targets would become eligible for “deferred action.” This meant members of those benign groups could come forward and receive a three-year authorization to live and work legally in the United States. The new policy didn’t provide “legalization” or a “path to citizenship,” much less “amnesty”; indeed, “deferred action,” which may be revoked at any time, isn’t even binding temporary protection against being deported. But those who qualified and registered for the programs would have a chance to live normal lives, work, and pay taxes. The hope was that within three years, the political system would have begun to function, producing comprehensive reform.