By Lydia Wheeler
April 18, 2016
The Supreme Court appeared divided during oral arguments Monday in a crucial case challenging the executive actions on immigration that President Obama took in 2014.
Justice Anthony Kennedy, who is typically the court's swing voter, seemed to side with Texas and the 25 other states arguing the president overstepped his executive authority in granting deferred deportation to nearly 5 million immigrants.
Kennedy said the president’s actions seemed more of a legislative task than an executive task.
"It's as if the president is setting the policy and the Congress is executing it," he said. "That seems upside down."
A 4-4 split by the court, which has shown signs it's struggling with just eight justices, would leave in place a lower court’s decision blocking Obama’s action in a severe blow to the president.
The justices spent the majority of the 90-minute arguments grappling with whether Texas has a legal basis to challenge the creation of the Deferred Action for Parents of Americans (DAPA) initiative and the expansion of the Deferred Action for Childhood Arrivals (DACA) programs that have been on hold since February 2015.
The states claim they will be burdened by having to spend more on public services like healthcare, law enforcement and education if undocumented parents of both American citizens and legal permanent residents are allowed to stay in the country.
Texas, specifically, says it will be hurt by having to issue more drivers licenses, a benefit that’s now subsidized.
“Isn’t losing money the classic case for standing?” Chief Justice John Roberts asked.
Since the administration argued that DAPA does not injure states because it does not require them to do anything, Roberts wanted to know whether it would be illegal for Texas to deny DAPA recipients a driver’s license.
“If they did not offer licenses, you would sue them wouldn’t you?” he asked Solicitor General Donald Verrilli Jr., who argued on behalf of the administration.
Justices Sonia Sotomayor and Elena Kagan questioned why the states aren’t challenging administration regulations that have long granted recipients of deferred action the ability to work and receive public benefits.
“It seems to me what you should be attacking is not DAPA, but the work authorization regulations DHS [Department of Homeland Security] has had for 30 years,” Kagan told Texas Solicitor General Scott Keller.
The House of Representative had 15 of the 90 minutes Monday to argue that the president’s programs should be struck down.
Erin Murphy, the attorney representing the House, argued that the president does not have the power to give immigrants the ability to work in this country. If all the administration wanted to do was protect people from being deported, she said, it would have simply issued an enforcement priority.
“What the executive wanted to accomplish was something more,” she said. “He said, 'We want you to be able to work and accept benefits.' ”
The Supreme Court issued the order giving lawmakers a chance to be heard after the House, in an unprecedented move, filed an amicus brief in support of the states. Democrats that disagreed with the Republican-led brief filed a brief of their own in support of the administration, but did not get time in court to argue their position.
The case could have a devastating effect on the president’s public policy legacy. Obama campaigned in both 2008 and 2012 on promises to push for comprehensive immigration reform, but has yet to fulfill those promises.
A 4-4 tie would essentially kill the programs for good. The lower court's temporary injunction would stand while the states seek to permanently block the president's actions. The litigation could span into the next administration, which may or may not fight to uphold Obama's actions depending on who wins the White House in November.
The court asked both parties to argue an additional question in their briefs – whether the immigration programs violated the Take Care Clause under Article II of the Constitution, which directs the president to take care that the laws are faithfully executed. That move signaled the justices are determined to settle the case - but the question was never raised during oral arguments.
For more information, go to: www.beverlyhillsimmigrationlaw.com