Lawyers for the federal government and for the 26 states that challenged the Obama administration’s sweeping change of immigration policy are due to meet this week to see if they can agree on how that controversy is to unfold from here on. The further review of the policy in the federal courts, however, may be thwarted by Tuesday’s presidential election result
President-elect Donald J. Tramp, during the campaign leading up to his victory on Tuesday, has vowed to move quickly after he takes office in January to overturn the policy that was aimed at delaying deportation for upwards of four million undocumented immigrants living in the U.S., most of them parents of children who are legally in the country. The policy also would allow those immigrants to get and keep jobs.
Because the policy was adopted by Executive Branch orders, the new administration probably would have the authority to nullify the orders and thus the policy itself. The policy was adopted by the Obama administration after Congress failed to pass a broad new immigration policy proposal.
The Obama policy, designed to keep families together while limiting deportations to criminals and other high-risk individuals, has been on hold for more than 20 months under delay orders issued by lower courts. Those courts have ruled, temporarily, that the administration did not have the legal authority to adopt the new policy without action by Congress.
The Supreme Court, splitting 4-to-4, refused last June to review the policy, thus leaving intact the lower court orders against enforcing the policy. After the Justices refused in October to grant the administration’s plea to reconsider, the case returned to a federal trial judge in Brownsville, Texas.
The Justices’ actions led the judge to order lawyers on both sides to get together, before Friday of this week, to see if they can agree on what procedures should be used to carry on the case further. It actually has never had a full-scale trial on the validity of the policy.
Judge Andrew S. Hanen said he would keep the case on hold until those conversations were held. The attorneys are to notify the judge by Friday, November 18, on whether they have come up with a common proposal, or would have to leave the scheduling to him.
Given the significance of the case, and the complexity of the issues, it seems unlikely that a trial could be completed promptly. That probably would mean that the case would still be open when President Obama’s term ends and Trump’s begins on January 20.
Because the President-elect is weeks away from taking office, the federal government’s existing legal team from the Justice Department necessarily is carrying on as if the trial is actually going to occur.
If the President-elect does go through with his plan to end the policy initiative, the fate of millions of immigrants will be uncertain for perhaps many more months. Both houses of Congress, newly kept under Republican control by the voters on Tuesday, may take up immigration policy bills at some point.
Among Donald Trump’s campaign comments, he had said he would move to deport all immigrants who are in the country without legal permission. Some of the critics of those comments have suggested that an attempt to accomplish all of those deportations would raise serious constitutional questions.
It will be up to the new President’s lawyers, in the White House, the Justice Department and in the Department of Homeland Security, to advise him on the steps he can take, using only the powers of the presidency, to deal with immigration policy. It is highly likely that any new White House initiatives would be challenged in new court cases.
(NOTE: This post also appears on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)
