Supreme Court Punts on Immigration Programs
Enabling chaos, or creating it?
By John Miano on May 1, 2025
While waiting to testify before the Senate Judiciary Committee on Optional Practical Training program litigation in 2015, a committee staff member told me: “Every year the chief justice sends us a report saying we need more judges, but we keep seeing cases like yours where the court just makes work for themselves.”
The staff member’s observation is visible to the public in a cycle that is now appearing repeatedly:
Obama or Biden created a new immigration program with the stroke of a pen (e.g., Deferred Action for Childhood Arrivals (DACA)) and were sued over whether the new program was lawful.
Alien beneficiaries of the program sued states to claim public benefits (see here and here).
Trump ends (or attempts to end) an Obama or Biden immigration program and gets sued over whether an immigration program created with the stroke of a pen can be ended with the stroke of a pen.
The fundamental question at the heart of this cycle is whether Congress shares with the executive the power to restructure immigration policy. Can the executive create such work or immigration programs on its own through regulation?
https://cis.org/Miano/Supreme-Court-Punts-Immigration-Programs
