January 19, 2016
From Law360

by Mark Lebetkin

The U.S. Supreme Court agreed Tuesday to hear the federal government's appeal of a decision that blocked President Barack Obama's executive actions on immigration. The court also asked the federal government and states involved in the case to weigh in on whether the executive action guidance runs afoul of the "take care clause" of the Constitution. Here, attorneys tell Law360 why the Supreme Court's taking up the case is significant.

"By agreeing to hear the administration’s appeal, the Supreme Court is taking the opportunity to define the limits of the executive branch’s authority in enforcing the nation’s immigration laws. The immigration statute provides the executive with the power to establish regulations to perform such acts which are deemed necessary for carrying out his or her authority under the immigration laws. For many years DHS (and formerly INS) regulations have allowed the executive to grant deferred action from immigration enforcement to particular individuals. The Supreme Court will now determine whether the blanket grant of deferred action to upwards of 5 million individuals, which allows these individuals to lawfully remain in the United States and obtain work authorization, is a proper execution of the executive’s enforcement powers. In its order granting certiorari, the Supreme Court specifically asks the parties to brief and argue whether the administration’s deferred action program violates the take care clause of the Constitution. The take care clause, which is also known as the 'faithful execution clause,' requires the executive to take care that the laws be faithfully executed. The Supreme Court clearly seems to be interested in the opportunity to define the executive branch’s limits under the take care clause, as the meaning of this clause has seldom been at issue before the court." Jeffrey S. Bell, Polsinelli Shareholder.

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