A challenge to President Obama’s immigration deferral program and (another) challenge that could harpoon the Affordable Care Act (ACA) could make it on the Supreme Court’s docket this term and be decided by the end of June.

For the first time at the Supreme Court’s private conference on January 15 it will consider petitions in United States v. Texas (immigration) and Sissel v. Department of Health and Human Services (ACA).

The Court will have three choices: grant the petitions, deny the petitions, or postpone making a decision until a later conference. If it postpones a decision in either case, it must decide at the January 22 conference to accept the cases or they will be heard next term (assuming the petitions are ultimately granted). 

If the Court is going to grant the immigration petition it will likely do so January 22 at the latest as the next President may simply not pursue Obama’s immigration program, rendering a June 2017 decision moot.  

Immigration

In November 2014 the Secretary of Homeland Security initiated the Deferred Action for Parents of Americans (DAPA) program allowing certain undocumented parents with citizen children to lawfully stay and work in the United States. Twenty six states sued the United States and won before the Fifth Circuit. Four legal issue could be decided in this case.

The United States argues that the states lack “standing” to challenge the DAPA program. The Fifth Circuit concluded that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing. 

States also challenged the DAPA program as violating the Administrative Procedures Act (APA) notice-and-comment requirement and claim it is arbitrary and capricious in violation of the APA. The lower court concluded the states were likely to succeed on both claims.

The Fifth Circuit reasoned the DAPA is a substantive rule requiring notice-and-comment not a policy statement. It is arbitrary and capricious because it is “foreclosed by Congress’s careful plan” in the Immigration Naturalization Act for “how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”

While the states oppose the Supreme Court reviewing this case (as the won in the lower court), they do assert in their opposition petition that the DAPA program is unconstitutional. The Fifth Circuit did not address the constitutionality of the program. They argue it must have--but lacks--congressional authorization. 

ACA

The Constitution’s Origination Clause provides that “all Bills for raising Revenue” must “originate in the House of Representatives,” but it allows the Senate to “propose or concur with Amendments” to revenue-raising bills originated by the House.

The ACA, which the Supreme Court has held imposes a tax on those who don’t have or buy health insurance, didn’t originate in the House. It originated in the Senate, which erased the text of another House-passed bill on another subject.  

The questions the Court will consider deciding in Sissel v. Department of Health and Human Services are whether the individual mandate is a “Bill[] for raising Revenue” to which the Origination Clause applies and whether the Senate’s cut-and-replace procedure is an “amendment” pursuant to the Origination Clause.

The D.C. Circuit ruled in favor of the federal government reasoning that the “primary purpose” of the individual mandate was to induce people to buy health insurance to make the ACA work, not raise revenue. So the ACA isn’t a “Bill[] for raising Revenue” subject to the Origination Clause.