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Rick Su: At this point, it is really hard to tell. The Supreme Court has the discretion to choose which cases it decides to review. As a result, the fact that it chooses to review a particular case usually offers some clue on what it intends to do. This case, however, is unique in that it was almost inevitable that the Supreme Court [would] take it up. It concerns the fate of a major executive policy, one that President Obama wants to be part of his legacy.
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There are a number of important legal issues surrounding Obama's executive order, but the number one reason why it has drawn such strong opposition, especially in comparison to executive actions by other presidents in the past, is politics. The executive order touches upon legalization and amnesty, which are issues that Congress has been debating for decades but has thus far been unable to resolve. It concerns an issue that has, in recent years, become a dividing line between Republicans and Democrats. By taking on the case, the Supreme Court has in many ways become the new battleground where this political war is being fought.
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There are a number of reasons why having a large undocumented population in the shadows is a concern. Economically, it has an impact on wages and working conditions. A longstanding concern with immigrants generally, and undocumented immigrants in particular, is that they depress wages for all Americans. Ironically, however, undocumented immigrants have an effect on wages in part because they lack legal status. Some employers may be more likely to prefer undocumented labor because they believe they can pay [undocumented workers] lower wages and subject them to illegal working conditions because undocumented immigrants will be less likely to complain or seek the protection of existing labor laws. e should not overlook the personal harms that our current immigration law imposes on the undocumented population and the people close to them. Again, undocumented immigrants are not entirely without fault; after all, they or someone they knew made the decision to come to the United States illegally. At the same time, it is worth asking whether the punishment fits the crime. Many undocumented immigrants have made their lives in this country. They are our neighbors and our coworkers, but they are without the protections and rights that we take for granted. Those who were brought here as children have worked hard in school and dreamed the American dream, but are denied the opportunities to live up to their full potential. For many undocumented immigrants, America is their only home. They are Americans in all ways except for their legal status. America is a country of laws. But it is also a country in which laws are continuously revised to reflect realities on the ground.
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Legally, the lower court decisions do not bind the Supreme Court in any consequential way. Yet in some ways, it seems the way that the lower courts' decisions have already influenced the Supreme Court's thinking on this issue. In addition to the legal questions raised by the federal government in its petition, the Supreme Court has requested the parties prepare to answer questions about whether the executive order violates the constitutional requirement that the president "shall take care that the laws be faithfully executed."This follows from the lower court's ruling that even though the president is afforded discretion in immigration enforcement by Congress, the nature of this executive order goes beyond discretion and violates the spirit of existing immigration laws. It is not clear the extent to which this question will play into the Supreme Court's ultimate decision. Yet the fact that they added this seems to suggest that the lower court's decision has already in some ways framed the way the Supreme Court is thinking about it.So in some ways, this case is about more than immigration?
How the Supreme Court decides the states' standing in this case will likely have broad implications for how political battles are fought going forward. If it is easy for states to sue the federal government over policy disagreements simply by alleging some kind of harm, no matter how insignificant or trivial, then states are likely to continue to play an increasingly larger role in national political debates. Moreover, by going to the courts, the fate of major policy decisions could ultimately be determined by courts rather than elected officials.Of course, if the Supreme Court finds that there is no standing for the states to challenge the executive order in this case, then the bar for states to sue will be raised, and they will likely play less of a role [in these types of] political controversy. In this respect, the implications of this decision extends beyond the issue of immigration, and may have broader consequences for American politics more generally.Follow Brian McManus on Twitter.