The Supreme Court announced on Tuesday that it will hear United States v. Texas a lawsuit brought by a bloc of states and Republican officials that challenges changes to immigration policy that President Obama announced in 2014. The new policies are expected to benefit approximately 4.9 million undocumented immigrants, the bulk of whom are parents of American citizens or legal permanent residents. Under the programs created or expanded by these policy changes, these immigrants will be permitted to temporarily find work and remain in the country.
Up until this point, the Obama administration has had an extraordinary run of bad luck in this case — much of it manufactured by the plaintiffs. At the trial level, the case was assigned to Judge Andrew Hanen, a judge with a history of using his judicial opinions to advocate for harsher immigration policies. Hanen halted the new policy changes last February. Then, in two separate proceedings before a federal appeals court, the case was assigned to two especially conservative judges. As a result, the new policies have never taken effect.
That could change now that the Supreme Court will hear this case — despite their conservatism, both Chief Justice John Roberts and Justice Anthony Kennedy have indicated that their views on immigration are more moderate than their party affiliation might suggest.
It’s worth noting, however, that in addition to the questions the Justice Department asked the Supreme Court to resolve, the Court also asked for briefing on an additional question — whether the document announcing the new immigration policies “violates the Take Care Clause of the Constitution,” which provides that the president “shall take care that the laws be faithfully executed.” That suggests that there is, at least, some skepticism among the justices about whether the president has the power to take these actions — although some degree of skepticism is not surprising in light of the past voting record of the Court’s three most conservative members.
The most important question in this case, however, may involve scheduling. Ordinarily, a Supreme Court term stretches from October through June, but the Court does not hear any new arguments after April. Cases that the Court agrees to hear this time of year are right on the cusp between those that will be heard during the present term and those that will need to wait until the Court reconvenes in the fall. Last term, for example, the Court heard oral arguments in Glossip v. Gross on its last argument day of the term. It announced that it would hear Glossip on January 23.
If Texas is heard in April, that sets it up for a June decision day, which means that President Obama will be able to implement his policies before leaving office if the Court rules in his favor. If it is delayed until next term, however, that will most likely delay a decision until the next president is sworn in.