Today the U.S. Supreme Court agreed to hear oral arguments in the case of United States v. Texas. At issue is President Obama’s controversial executive action on immigration, a program officially known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The underlying legal dispute is whether the executive branch’s implementation of DAPA runs afoul of the public notice-and-comment procedures required of all “substantive” administrative agency rules under the Administrative Procedure Act. In its order today, the Supreme Court also announced that it would consider whether Obama’s executive action on immigration violate Article II, Section 3 of the U.S. Constitution, which requires that the president “take Care that the Laws be faithfully executed.”
The White House maintains that its immigration action is merely a “policy statement” and is therefore exempt from normal federal rulemaking procedures and requirements. But in November 2015 the U.S. Court of Appeals for the 5th Circuit took a different view. “At its core,” the 5th Circuit wrote, “this case is about the [Obama administration’s] decision to change the immigration classification of millions of illegal aliens on a class-wide basis. The states properly maintain that DAPA’s grant of lawful presence and accompanying eligibility for benefits is a substantive rule that must go through notice and comment, before it imposes substantial costs on them, and that DAPA is substantively contrary to law.” As a result, the 5th Circuit blocked the White House from implementing DAPA.