Supreme Court Photo
The U.S. Supreme Court upheld a lower court ruling preventing Arizona from denying bail to undocumented immigrants. The high court is pictured here May 18, 2015. Reuters/Joshua Roberts

The Supreme Court could soon decide two major issues on legal rights for undocumented immigrants. At stake is the ability for immigrants living illegally in the U.S. to come out of the shadows, earn more money to support their families, and have political power and representation in the government.

One of these two cases concerns the Obama administration’s executive actions on immigration that defer deportations and extend work permits to millions of undocumented immigrants, which could go before the Supreme Court if a lower court continues to block its implementation. The other case, which justices announced this week, is a challenge to voter redistricting rules that could exclude undocumented immigrants from population counts.

Some legal experts say there isn’t a clear litmus test for which direction the current justices would sway in immigrant rights cases. But many immigrant advocates and attorneys agree that the Obama administration legally issued the actions related to how it would enforce immigration law. For that reason, the Supreme Court is likely to look favorably on Obama’s measure, while the just as critical voting districts decision will be based on a lesser explored legal standard, the experts said.

“[The Supreme Court] is certainly a better venue than the conservative 5th Circuit Court of Appeals,” said Brett Wilkes, national executive director of the League of United Latin American Citizens, referring to the court currently reviewing Obama's executive action on immigration. “In the end, the Supreme Court is going to be the ultimate decider, and I think they [the administration] feel that’s their best strategy.”

Temporary Work Visas

In November 2014, Obama said he would increase the size of Deferred Action for Childhood Arrivals, or DACA, a 2012 program protecting from deportation the young immigrants who arrived in the country illegally as children. The president’s latest executive actions would have granted deportation deferrals and work permits to parents of U.S. citizens and permanent residents through a program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

Twenty-six Republican-led states sued in January to stop the expansion of the immigrant program and a federal district court judge in Texas put the program on hold in February. The Obama administration announced Wednesday, May 27, that it would not appeal its request for an emergency stay to the Supreme Court after a 2-1 judge panel vote this week by the Court of Appeals in New Orleans decided to uphold the program's delay. The Department of Justice has said it will focus, instead, on appealing the injunction that blocked the program. That appeal will be heard in July.

The Department of Homeland Security says more than 787,000 undocumented immigrants have already been approved for the first wave of temporary work permits through December. Obama's expansion would have opened the program to an additional 5 million people.

Experts say the issue not to pursue an appeal of the emergency stay decision this week is good strategy and not an indication that the Obama administration believes it would lose in the Supreme Court. “You can’t judge the success or likelihood of success on the failure to file a particular motion at a particular time,” said Karen Tumlin, the managing attorney for the National Immigration Law Center. “It‘s much more difficult to convince a court -- and a higher legal threshold to meet -- when you’re only about a month away from hearing the appeal.”

Equal Representation

The Supreme Court case on laws regulating the creation of legislative districts is not an issue of executive power, but one of equal protection under the Fourteenth Amendment to the Constitution. The case, Evenwel v. Abbot t., revisits the “one person, one vote” standard set by the court decades ago. The regulations ensure that voting districts are not drawn to disenfranchise minority populations.

Two Texas plaintiffs have sued to shift the state from using the total population of a voting district to a count of eligible voters, excluding noncitizens, undocumented immigrants and convicted felons. Legal experts say this would disproportionately impact states with large immigrant populations because their populations skew younger and have a higher concentration of noncitizens.

Lower courts have never ruled that any state violated the Fourteenth Amendment by using the total population to draw districts, but the plaintiffs claim that their votes would count less than if they were in other districts with fewer immigrants. A ruling on the case is expected by the end of court session in June.

The plaintiffs are less likely to win favor with the court because they are asking the court to favor political representation for one group of people over another. “It’s alarming,” Wilkes said. “This harks back to whether or not to count the slaves. It’s the idea that, yes, not everybody votes. But you draw the districts to represent all the people in them, whether they voted for you or not. That’s always been accepted and it’s never been challenged before.”

Greg Chen, director of advocacy for the American Immigration Lawyers Association, said that if the Supreme Court doesn't rule to protect immigrant rights, "it’s going to have a devastating impact" on undocumented immigrants and on the larger American economy. "It's unfortunate that these issues have to be decided by the court, instead of in Congress," Chen said.

A Legal Precedent On Immigrant Rights?

In the past, the court has ruled both in favor of and against undocumented populations. In Reno v. AADC, the U.S. Supreme Court ruled in 1997 favoring deferred action as a constitutional form of prosecutorial discretion. Advocates point to that case as the clearest indication of how the high court would view a challenge of Obama's executive actions.

In June 2014, the justices agreed with the Board of Immigration Appeals’ stance on the Child Status Protection Act, which regulates green card policies for people seeking a legal pathway to citizens. In Scialabba v. Vuellar de Osario, the court said the CSPA applied only to those named on the application and not the children of the person named on the application, according to, an online legal resource website. That meant that children protected by the federal law who lost their eligibility at age 21 would have to start the years-long process over, at the back of the long line.

Outside of the legal precedents, advocates say Republican delays and legal challenges to immigrant rights only harm those vulnerable populations. For example, millions of immigrants had hoped the Obama measure would give them new rights this year, not sometime in the future. Now, they might never get temporary work visas through the Obama administration.

“The major risk is that the time runs out before the program is put in place and then there’s no president to continue the policy,” Wilkes said. “All the people who would have benefited would have to continue with an illegal status and live with all the anxiety and victimization that comes with that.”