Will the Supreme Court smack down Obama’s immigration program?

Members of CASA de Maryland participate in an immigration rally outside the Supreme Court last week. (Photo: Susan Walsh/AP)

More than 60 years ago, the Supreme Court dealt a stunning blow to then-President Harry Truman, reversing his wartime seizure of steel mills during a labor strike as an unconstitutional overreach of his executive powers.

“It is not a pleasant judicial duty to find that the President has exceeded his powers,” the justices wrote a bit apologetically in the 1952 opinion.

Now, Texas and 25 more states are relying on that case, Youngstown Sheet & Tube Co. v. Sawyer, to argue that the Supreme Court must again carry out that duty — by striking down President Obama’s move to protect millions of undocumented immigrants from deportation as an executive overreach.

On Tuesday, the Supreme Court decided to hear the case this term and unexpectedly added two sweeping constitutional questions that neither of the lower courts had considered. The court will consider whether Obama is violating the separation of powers by circumventing Congress and failing to follow the Take Care Clause of the Constitution, which compels the president to faithfully execute laws. This suggests the justices are looking to broaden the ruling rather than hand down a narrow decision.

With this case, the court will enter new territory — no previous decision has found that a refusal to enforce immigration law is unconstitutional. Courts have also been reluctant to wade into disputes about how the president decides to enforce the law, tending to let Congress and the executive duke it out on their own and avoid accusations of judicial overreach.

“In the past, courts have been very deferential to the president when it comes to enforcement actions,” said Jeff Rosen, head of the National Constitution Center. “When the president refuses to bring enforcement action, courts have been very cautious. There’s also a reluctance for the courts to intervene between Congress and the executive on executive power.”

But two lower courts have already ruled against the Obama administration in this case, blocking him from going through with the plan to give temporary legal status to an estimated 4.9 million undocumented immigrants, an expansion of his 2012 program that protected more than 700,000 young immigrants. And this Supreme Court has not hesitated to rule on cases that some have said merited more restraint.

“It would be a very big deal for the court to weigh in on this against the president on this case,” Rosen said. “But there’s no question that this is a court that’s not shy about flexing its muscles.”

In the Youngstown case — the “granddaddy” of executive power cases, according to James F. Blumstein, a professor at Vanderbilt University — a concurring opinion found that the president’s power is at its “lowest ebb” if he takes action incompatible with the expressed or implied will of Congress. So, for example, if Congress had passed a law prohibiting giving temporary legal status to undocumented immigrants, the Obama administration would be on very shaky legal ground. But Congress has taken no such action, which makes it harder for the states to argue that there’s an interbranch standoff that the courts must wade into and decide.

“To the extent that this is an interbranch dispute, it’s not a hot one,” said Jack Chin, law professor at the University of California, Davis.

The main question facing the court is whether the president is simply prioritizing limited enforcement resources with the program or whether he is affirmatively conferring a special status on a group of immigrants as a way to get around Congress’ reluctance to pass immigration reform.

Another big issue in the case is whether Texas has the right to sue at all, as the state must show it is suffering a direct and specific injury from the program. Texas subsidizes the cost of driver’s licenses, and immigrants with legal status are eligible to apply for them. The state estimates that about 500,000 immigrants within its borders will be eligible for temporary legal status under the program, and that it will be forced to pay about $130 for each person who applies for a driver’s license. However, the government rejects this as a legitimate injury, arguing that Texas could change its policy and refuse to subsidize licenses.

Liberal-leaning justices are, on average, more likely to accept a broad definition of standing than conservatives. In 2007, the liberal justices voted to accept Massachusetts’ claim against the Environmental Protection Agency for not regulating carbon emissions, even though Justice John Roberts and three of his colleagues argued that the state had no standing to bring the case. In the immigration program case, it will be interesting to see whether the liberals stick to their tendency to grant standing in these situations, even though they would then open up the potential for a decision that could knock down a liberal policy. A decision against the president could also affect the status of the more than 700,000 young undocumented immigrants who received deferred action from Obama’s first program, in addition to preventing future immigrants from benefiting from the new program. If the court sides with Obama, the president will have several months to begin to implement the plan before his term is up.

If the court rules against the president, it will be a reversal of the justices’ overall deference to Obama’s legacy thus far. Roberts has twice voted to save the president’s sweeping health care law, and a narrow majority of the justices found a right to same-sex marriage last summer, which the president’s Justice Department supported. Swatting down the immigration action as executive overreach would be a bitter parting shot from this court to the former law professor president.