(CN) - The Justice Department appealed the injunction against President Barack Obama's immigration program to the Supreme Court on Friday, arguing that 26 states don't have standing to challenge the plan.
Experts says the filing is a last-minute effort for the Obama administration to get the case on the U.S. Supreme Court's docket for a hearing next June. If it was pushed back to the next Supreme Court term, the issue may not be resolved before Obama leaves office in January 2017.
The nation's high court is almost certain to take the case because of its national significance - an estimated 5 million undocumented immigrants could qualify for temporary lawful presence rights in the U.S. under the program. Only four of the nine justices' votes are required for the court to hear it.
A Fifth Circuit panel ruled 2-1 on Nov. 9 that the president overstepped his authority by offering temporary protection to undocumented parents of some U.S. citizens.
Obama's program, Deferred Action for Parents of Americans, or DAPA, would give qualifying immigrants the right to live in the U.S. without being deported for three-year terms, which may be renewed. Those who qualify could apply for driver's licenses and federal work permits.
The Fifth Circuit accepted the argument from 26 Republican states, led by Texas, that the states could challenge the policy because they would have to bear the cost of issuing driver's licenses for the immigrants.
Because Texas subsidizes its driver's licenses - it does not make applicants pay processing fees - it would pay $130.89 for each license issued to a DAPA beneficiary, which could add up to millions, since an estimated 500,000 people would qualify in Texas, the Fifth Circuit majority found.
The U.S. Justice Department challenged that finding in its appeal to the Supreme Court on Friday. The federal government claims that Texas' choice to pay for driver's licenses for such immigrants doesn't give it standing to challenge the program.
"Like a member of the public, a state generally lacks standing to challenge the executive's policy choices about how to enforce federal laws, including the immigration laws," Justice Department attorneys wrote in their petition for a writ of certiorari.
The petition also says that states don't obtain standing to challenge a federal immigration policy "by virtue of the collateral consequences for aliens who are the policy's beneficiaries."
The Fifth Circuit majority also accepted the states' argument that the Obama administration violated the Administrative Procedure Act by changing the rules on immigration without publishing DAPA in the Federal Registrar to let citizens and states comment on it before it became policy. The program would have started in May but the injunction blocked it.
The Justice Department argued that the states are flat-out wrong on that point.
"The [Immigration and Nationality Act] also contains no notice-and-comment provision or other procedure granting states a special right to 'participate' before the secretary changes immigration policies that may have incidental consequences for a state, including on any voluntary state-law subsidies," according to the Justice Department's petition.
The federal government ended the 45-page appeal with its primary argument: DAPA gives a break to the millions of law-abiding immigrants who have lived in the U.S. for years, who are raising families and working hard, and who the government doesn't have the resources to deport.
It is unclear when the Supreme Court will decide whether to hear the appeal, but a Washington, D.C., think tank, said certiorari is all but a certainty.
"The government's decision to seek Supreme Court review of President Obama's immigration action is welcome," Brianne Gorod, appellate counsel with the Constitutional Accountability Center, said in a statement.
Gorod, a former clerk to Justice Stephen Breyer, added that "the court can easily hear this case in the current term, which is important given both the case's significance and the fact that the lower courts have blocked the president's action from going into effect."
"In fact, given the court's normal procedures, it would risk the appearance of engaging in politics if the court didn't hear the case this term," Gorod said.
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