Though the latest Affordable Care Act challenge didn’t make the cut, Obama’s immigration reform actions will officially be heard by the Supreme Court this term. And now, the timeline may have a more broad effect than ever.
SCOTUS announced Tuesday that they would hear the case about whether President Obama has the authority to declare millions of qualified, undocumented immigrants be allowed to remain and work in the United States without fear of deportation. The justices are scheduled to hear the case this April, with a decision expected to be released in June before the end of their term—and in the heat of the presidential election. That backdrop could mean a whole different playing field for the reform when it’s decided.
The executive actions in question were announced in November 2014 when Obama rolled out a plan to greatly expand immigration programs, with changes scheduled to come to the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of Americans (DAPA) as early as mid-February of last year. If the changes had been enacted, almost 5 million of the immigrants living undocumented in the U.S. would’ve qualified to apply to work legally and pay taxes. But 26 states filed a lawsuit to halt the order, and a federal judge agreed. Then in November, the Fifth Circuit unsurprisingly delayed the immigration rule’s implementation, again.
The main issue, amongst others, has always been about the finer points—that the administration overstepped its bounds in the implementation of the policy, not inherently the policy itself. And though at least 136 leading experts on immigration law agree the policy is sound, that may not be enough if the rollout isn’t.
It’s another sign that Conservatives are growing tired of acquiescing to Obama’s unilateral actions, or “policy changes” as Obama would have you call them. Sure, he’s only signed 227 executive actions, 64 less than his Republican predecessor (and 3,494 less than Franklin Roosevelt, with far and away the highest count), but many of them circumnavigate Congress on key issues like gun control or immigration reform. And that contentious atmosphere will be the backdrop for the final verdict from the Supreme Court, which will be about six months until the end of President Obama’s term, and only about a month before the Democratic and Republican National Conventions. It’s the sort of issue that’s rife with things for candidates to break down—executive action, immigration, and an continuously stalled Congress—but it’s the people it affects who will have the most at stake.
The Pew Research Center estimates there’s about 11 million undocumented immigrants living in the U.S. If Obama’s executive action gets the go-ahead from the Supremes, about 4.7 million of those people will be newly protected, with the bulk (around 3.71 million) coming from the implementation of DAPA, which would allow parents of citizens or legal permanent residents to live and work in the U.S. without threat of deportation.
Although every president since Eisenhower has deferred the deportations of some class of unauthorized immigrants, it’s far from a sure bet—even if it wins over enough Supreme Court Justices. In the impassioned political climate surrounding immigration, not to mention the presidential election, it could be one of the first things to go depending on who wins the November election. As Angelo Paparelli writes for Nation of Immigrators, that susceptibility could create some awkward circumstances at work for those applying to work legally:
There’s an obvious problem, however, with the slow grant of work permits to the undocumented and the much quicker enforcement of worksite violations. The President did not announce a deferral of enforcement of the Immigration Reform and Control Act of 1986 — the Reagan era law and later amendments which sanction businesses that employ workers whom the employer knows lack employment authorization (IRCA’s § 101) or who commit unlawful acts of immigration-related discrimination (IRCA’s § 102). It did not even issue a memo similar to the agency guidance offered in 2001 which gave employers a hint of modest relief when sponsoring undocumented workers for labor certification to gain “245(i)” benefits under the LIFE Act. Thus, employers are still at risk if they become aware that any undocumented workers are planning to apply, or have applied, for benefits under the new executive actions on immigration.
Paparelli continues noting that in a hypothetical situation where workers were gleefully applying for the DACA or DAPA programs, the HR department may have to take action if they found out that their staff was undocumented. With the uncertainty of those programs palpable in the air, it may be enough to scare workers into withholding their application. In the event of such a “chilling effect” the program could see something of a downward catch-22: The program isn’t successful because would-be users don’t think it’s safe and would only put them in jeopardy, effectively killing the program right out of the gate. The problem is, here worriers might not be too far off. The executive action’s fate may currently lie at the Supreme Court, but even if it finds success there it’s possible it won’t taste the fruits of victory.