President Obama’s late 2014 executive order on immigration that would offer protection from deportation (and work permits) to more than four million undocumented immigrants has been tied up in the courts since February 16, 2015.  However, the Supreme Court has recently granted certiorari to the case known as Texas v. U.S., and will be reviewing the Fifth Circuit’s decision to uphold the court-ordered injunction.  The Justice Department’s legal brief is due in March, followed by oral argument in late April or early May. The Supreme Court is expected to reach a decision on the case sometime in June.

The Supreme Court has directed the parties to provide a full briefing on the legality of DAPA (Deferred Action for Parents of Americans) under the “Take Care” Clause of the Constitution (Art. II, §3).  This is a unique turn of events because the court rarely adds issues to the case that were not heard on appeal below.  Consequently, the Supreme Court’s holding in Texas v. U.S. may have serious implications concerning the responsibilities and power of the executive branch for this and future administrations.

That said, if the Court were to issue an evenly divided 4-4 decision (now a possibility with the recent passing of Justice Scalia), the opinion would only have the effect of affirming the Fifth Circuit’s decision; it would not necessarily preclude other circuits from deciding differently.