Column: United States v. Texas, our Constitution and character


The Supreme Court is seen in Washington, Wednesday, Feb. 17, 2016. (AP Photo/J. Scott Applewhite)

Today marks the beginning of oral arguments in United States v. Texas, considered by Dara Lind of Vox to be the most important immigration case of the century. The court is positioned to decide the constitutionality of President Barack Obama’s executive actions expanding the Deferred Action for Childhood Arrivals (DACA) and creating the Deferred Action for Parents of Americans (DAPA) in 2014.

The decision will have a tremendous impact on an estimated 5 million people living here illegally that DAPA specifically targeted either by intensifying their fear and perpetuating a current state of legal limbo, or, rather, helping secure a path towards citizenship. 

These programs were designed to give unauthorized immigrants the ability to apply for protection from deportation. DACA, originally established in 2012, grants some immigrants who came to the United States as children protection from deportation and access to certain work permits. DAPA expanded similar protections in 2014 to apply to the parents of U.S. citizens/permanent residents who themselves may be unauthorized immigrants.

The case has continually broadened in scope since a U.S. District Court in Texas issued an injunction, effectively blocking DAPA until the states involved in the suit had a full hearing. The United States federal government has appealed this injunction unsuccessfully in the Fifth Circuit Court of Appeals, and has now found itself in front of the Supreme Court, the court of last resort, which will rule both on the injunction and merits of the case itself; an ideal ruling for the Obama administration would overturn the injunction, and uphold the constitutionality of the program.

In addition to deciding whether Texas, and the other 25 states involved in the suit, have standing to sue, is the statutory question of whether DAPA violated the Administrative Procedures Act, which establishes procedures for federal agencies’ for the implementation of new regulations.

The states argue the “notice and comment” period required by the APA never took place for DAPA – something the Obama administration acknowledges, but contends is not necessary in this particular policy instance. The answer will likely depend on what the court decides to be the nature of Obama’s immigration policies.  

Which leads to the most fundamental, constitutional question being argued in this case: was Obama acting within his constitutional authority in announcing these orders; and how does it relate to the “take care” clause of the Constitution – the president’s responsibility to “faithfully execute” the laws of the land? 

Notably, instead of the traditional 60 minutes of oral arguments between both sides, the Court has set aside 90 minutes to hear the case, according to SCOTUSblog: 30 minutes for Texas and the other states arguing against the programs, 35 for the United States federal government, 10 for a lawyer of a group of immigrant beneficiaries of Obama’s programs, and 15 for the House of Representatives – highlighting the political nature of this case, and who will likely argue Obama overstepped his authority and is also not in line with Congressional intent on immigration. 

There also is the possibility that, given Scalia’s absence from the court and no replacement, the court could be hung in a 4-4 decision, letting the injunction stand, giving states more control and putting national immigration laws in a troubling disarray. 

To put it simply: there’s a lot going on here. Immigration law is one of, if not the, most complex legal fields; for instance, it is sadly no wonder that 89 percent of asylum seekers without attorney representation are denied asylum and a path to citizenship. Obama’s executive actions were in large part inspired to establish a greater level of uniformity and clarity in immigration policy, especially given the failure of Congress to deliver meaningful immigration reform and the increasing logistical constraints.

As Obama remarked in his address to the nation on immigration back in November 2014, his executive actions were designed to tell illegal immigrants to “come out of the shadows and get right with the law.” Currently, states are contending the executive actions grant unauthorized immigrants “lawful presence” – something Congress has not warranted. The White House argues, rather, it gives a temporary “lawful status,” allowing (not necessarily granting) such persons towards a path to citizenship. 

Of course, there is much more: what the court ruling would mean for keeping millions of members of American society’s families together, Obama’s legacy on immigration, as well as our greater national identity – the character of which, now more than ever given increasingly hateful rhetoric, requires us to reassert that we are a nation of immigrants, as well as a nature of laws.

No matter what may happen in American politics between now and June, when the court will issue its ruling, let us not forget the “golden door” of opportunity we have strived to be – as transcribed on the Statue of Liberty – long before any mention of “walls.”

Marissa Piccolo is associate opinion editor for The Daily Campus. She can be reached via email at She tweets @marissapiccolo.

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