Supreme Court Punts on Immigration Programs

While waiting to testify before the Senate Judiciary Committee on Optional Practical Training program litigation in 2015, a committee staff member told me: “Every year the chief justice sends us a report saying we need more judges, but we keep seeing cases like yours where the court just makes work for themselves.”

The staff member’s observation is visible to the public in a cycle that is now appearing repeatedly:

1. Obama or Biden created a new immigration program with the stroke of a pen (e.g., Deferred Action for Childhood Arrivals (DACA)) and were sued over whether the new program was lawful.
2. Alien beneficiaries of the program sued states to claim public benefits (see here and here).
3. Trump ends (or attempts to end) an Obama or Biden immigration program and gets sued over whether an immigration program created with the stroke of a pen can be ended with the stroke of a pen.

The fundamental question at the heart of this cycle is whether Congress shares with the executive the power to restructure immigration policy. Can the executive create such work or immigration programs on its own through regulation?

Let’s say the courts decide the question. Let’s also assume that they hold that Congress alone determines the structure of the immigration system. That puts an end to the back and forth of one administration creating immigration programs and another eliminating those programs. In that case, all three kinds of lawsuits effectively go away.

On the other hand, assume the courts decide that Congress and the executive share the power to restructure immigration policy. In that case, the first group of lawsuits above effectively goes away.

But what actually has happened is that the courts cannot agree on an answer. The Fifth Circuit holds that the executive lacks such power. The D.C. Circuit has gone so far as to deviate from the rest of the circuits and held that Congress cannot even dictate the terms of an alien’s stay in the United States at all. Instead, aliens in the United States are exclusively governed by regulation.

These differences in interpretation mean that you get a different result depending on where you bring your case. That, in turn, leaves the door open to lawsuits on both sides of the issue.

We have a Supreme Court that is supposed to resolve such conflicts and the question of whether the executive can create immigration programs granting aliens employment has been put before the Court at least five times over the past decade. But each time the Supreme Court has punted, leaving that question left unanswered.

Litigation over whether DACA is lawful is still going on after a decade, assisted by at least three punts by the Supreme Court.

At best we have judicially enabled chaos in immigration; at worst, we have judicially created chaos in immigration.

If you add more judges with more viewpoints to a judicial system where you cannot get an authoritative answer from the Supreme Court, you just generate more lawsuits. The Judiciary Committee staff was right to be skeptical of the need to add more federal judges in the current environment.