The Supreme Court agreed last week to review a legal challenge to President Obama’s plans to use his executive power to revamp immigration policy, and since then commentators have been weighing in with explanations and prognostications.  Here is a survey of where the issue now stands.

The case of United States v. Texas involves a challenge to a program President Obama announced in late 2014. Citing Congress’s inability to reform a broken immigration system, Obama declared that he would suspend deportation actions against millions of undocumented immigrants and allow them to legally work in the country.  The program would apply to approximately five million illegal immigrants who are the parents of citizens or of lawful permanent residents.

The program has never gone into effect. Twenty-six states immediately challenged it in court, and the plan was put on hold pending the outcome of the litigation.  The state challengers won the first two rounds of the legal battle, first in a federal district court in Texas, and then in the 5th Circuit Court of Appeals, which decided against the Administration in a 2-1 ruling.

The states challenging the presidential action raise several claims.  They argue that the President’s program violates the procedural requirements of the Administrative Procedure Act, which requires a notice and response period prior to the promulgation of new executive rules.  (This was the primary ground on which the district court ruled against the Administration.)  The states also argue that the President’s program violates the requirements of federal immigration law.  (This was the ground on which the federal appeals court ruled against the administration.)

In response, the Obama Administration’s lawyers counter not only that the President has statutory authority to implement the program, but that the challengers should not even be in court, because they lack the requisite “standing” to litigate the issue in federal court.  The states suffer no injury because of the policy, Administration lawyers argue, and therefore they cannot turn to the courts for relief.  (The states argue that since the program would require additional state expenditures, such as the issuance of driver’s licenses for undocumented immigrants, the program does in fact “injure” them.)

The Supreme Court will consider all these questions.  But the Justices threw the litigants a curveball when they accepted the case for review: they asked the litigants to address a question they and the lower-court judges who had ruling on the case had largely avoided thus far.  This was not some narrow, technical question, which the Justices on occasion insist on discussing.  To the contrary, this was a sweeping constitutional question—one that many constitutional lawyers assumed was “non-justiciable,” meaning it’s the kind of constitutional question the courts simply don’t decide. (For a brief discussion on this issue, see here.)  The question was whether in declining to deport immigrants whose presence in the United States violates federal law Obama violates his obligation, under Article II of the Constitution, to “take care” that the laws of the United States are “faithfully executed.”  

The stakes of the case are monumental.  Not only could the decision affect millions of undocumented immigrants, but it “could redefine the balance of power between Congress and the president,” according to Cornell Law Professor Stephen Yale-Loeher.

So now we’re all scrambling to get up to speed on the Take Care Clause.  A good start on this issue can be found on the Heritage Foundation website, which offers a useful summary of the Take Care clause written by UVA law professor Sai Prakash; it includes a survey of its limited litigation history. Garrett Epps weighed in on the Court’s added constitutional question in The Atlantic.  The Washington Post ran a story with a survey of the history behind the clause and scholarly interpretations of its meaning.  Also helpful is a recent post on Jurist by Professor Glenn Smith.

A sampling of expressions of support for the Administration’s position:

• The New York Times editorial board writes in a January 19 editorial: “The states should never have been allowed standing to sue in the first place, and their substantive claims are groundless…. Mr. Obama is wholly within his authority to make wise use of limited enforcement resources. The Supreme Court has already recognized this fact; now it needs to reiterate it.”
• The Los Angeles Times argues that “the court should act quickly to blow away the smoke and affirm the president’s authority.”
• In the Washington Post, Ilya Somin explains why the President’s actions are “systematic, transparent exercises of presidential authority.”

And critics of the Administration’s position:

• Carrie Severino of the Judicial Crisis Network tells CNN that “the fact that the Court added the constitutional question means that some justices recognized that this is not a run of the mill act of prosecutorial discretion, but a novel and controversial power grab.”
• “For the past seven years, Obama has treated the take care clause as a mild suggestion,” writes conservative commentator George Will.
• At the National Review, Josh Blackman hopes that “the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers.”