Politico
By Josh Gerstein and Seung Min Kim
April 18, 2016
The shorthanded Supreme Court appeared deeply divided Monday as it mulled the legality of President Barack Obama's executive actions granting quasi-legal status and work permits to millions of immigrants who entered the U.S. illegally.
Two Republican appointees the Obama administration hoped to win over — Chief Justice John Roberts and Justice Anthony Kennedy — were surprisingly critical of many of the arguments the administration offered against the challenge 26 states brought to the latest round of Obama's actions, namely his moves in 2014 to protect and provide benefits to illegal immigrants who are parents of American citizens.
Kennedy said Obama's move to authorize broader use of "deferred action" for immigrants seemed to be dictating immigration policy rather than following Congress' lead in that area.
“The president is setting the policy and Congress is executing it. That’s just upside down," Kennedy said.
However, Kennedy didn't definitively signal his position on the case and, at times, he seemed open to arguments that the suit brought by Texas and the other states should be thrown out on technical grounds. With all the court's liberal justices appearing inclined to reject the Texas-led lawsuit, any defection by the GOP-appointed justices would allow Obama to revive his policy moves — which have been suspended while the courts weigh the issue — and give a huge boost to his immigration legacy during his remaining months in office.
Roberts seemed less open to the procedural and technical arguments than Kennedy. The chief justice also appeared to accept the state of Texas' view that increased costs for drivers licenses were enough to give the states standing to sue over Obama's actions.
"Isn’t losing money a classic case for standing?” the chief justice asked.
Roberts also raised a series of popular conservative arguments against the Obama moves, including quoting statements the president made in his early years in office suggesting he did not have authority to go as far as he did in 2014. "What was he talking about?" the chief asked.
While the key policy issued under Obama's executive actions said illegal immigrants who apply for special status could now be considered lawfully present in the U.S. Solicitor General Donald Verrilli argued that the "Deferred Action for Parents of Americans" or "DAPA" policy amounted to more of a “tolerated presence” of those in the United States without legal status. “If he had said I’m actually giving people … legal status, that would be going further," Verrilli said.
Verrilli argued that states like Texas went to court prematurely, because they did not first pursue the option of changing their laws regarding drivers licenses in order to try to deny driving permits to recipients under Obama's deferred action program.
However, Roberts said it appeared likely the federal government would sue any state that did so, arguing that it was intruding on federal authority over immigration matters.
“I just think that’s a real Catch-22,” the chief justice said. “You would sue them instantly.”
Justice Samuel Alito jumped on the same point, arguing that Verrilli was obliged to say whether it would be legal for Texas to deprive the beneficiaries of the Obama actions of licenses.
“You have to tell us,” Alito declared.
Verrilli would not say definitively what stance the federal government would take in such a situation and he suggested it would depend on what reasons a state articulated for restricting the issuance of licenses.
“It would depend on what they did and why they did it,” he said.
Texas Solicitor General Scott Keller called the DAPA program "an unprecedented, unlawful exercise of executive power," arguing that DAPA amounted to the “largest change” the executive branch had even implemented in immigration policy.
That prompted Justice Sonia Sotomayor to raise the “Family Fairness” program under President George H.W. Bush. “That was 40 percent of the immigration population at the time … at least once before, the president has taken action that has greater percentage than here," she said.
Keller, as well as counsel for the GOP-led House of Representatives, both repeatedly argued that Congress had never passed legislation intending the undocumented population to obtain lawful presence. Other grants of deferred action, they said, were for immigrants who had some sort of a “bridge” to being here legally, Keller argued — such as foreign students who were granted the right to be here following Hurricane Katrina.
Kagan pressed Keller on whether the administration had the right to tell so-called “low-priority” immigrants that they weren’t likely to get deported. Keller responded “If that’s all they’re doing, yes” and added that it was giving the immigrants the ability to work legally that Texas and the other 25 states found problematic.
Kagan then responded that it was perhaps general regulations concerning work authorization that Texas should be challenging, not so much DAPA itself. “The real challenge is to the regulations,” Kagan said, adding “the fact that non-enforcement leads to a certain set of results” — in other words, work authorization would come alongside being deferred from deportations — is not being challenged by Texas.
If the court's liberal and conservative wings deadlock in a 4-4 vote, Obama's plans will almost certainly remain on ice through the end of his presidency.
The challenge argued before the justices on Monday, United States v Texas, was brought by states who contend they and their citizens would suffer as a result of Obama's efforts to provide some protection and benefits to a large swath of the estimated 12 million illegal immigrants in the U.S.. One key question for the justices is whether Texas and the other states have the legal standing to sue over a federal immigration program that does not directly impose any requirements on state officials.
A 4-4 tie is possible in the case since the court has been operating one justice short as the result of the unexpected death of Justice Antonin Scalia in February. Despite the deep divisions on display Monday, the justices could be eager to avoid a tie vote in this case because it would have an unusual impact: upholding a nationwide injunction a judge in Texas issued last year barring Obama from going forward with his latest round of executive actions.
A tie vote at the high court result in the ruling below being upheld. That sometimes allows differing legal rules to apply in different parts of the country. However, due to the injunction in this case, the conservative 5th Circuit Court of Appeals decision blasting Obama's immigration moves as exceeding his legal authority would appear to set the standard for the whole country at least through the end of Obama's term next January.
If the justices are divided evenly in the case and that scenario is unpalatable to them, they also have another option: set the case for reargument in the fall in the hope a replacement for Scalia will be in position by then and can break the tie.
However, with Republicans in the Senate vowing to block confirmation of anyone to the court before the November election, Obama's nominee — D.C. Circuit Chief Judge Merrick Garland — doesn't seem likely to be confirmed to the high court by the time the justices start hearing cases again in the fall. It also would likely be too late by fall for the administration to launch its expanded programs, so the issue would essentially be left to the next president.
Some indication of where the current justices stand is expected by June, when the court usually issues its final opinions of the term before breaking for the summer.
Whichever way the high court ultimately rules, its decision will almost certainly re-energize the volatile issue of immigration in the presidential campaign. Both Hillary Clinton and Bernie Sanders have pledged to push the bounds of executive power and expand Obama’s immigration actions. Meanwhile, the top two GOP hopefuls — Donald Trump and Ted Cruz — have promised to rescind the programs immediately and have taken particularly hard-line stances against undocumented immigrants.
Intentionally or not, some of Roberts’ questions also seemed to address proposals Clinton and Sanders have made to expand Obama’s executive actions even further — suspending deportations of nearly all illegal immigrants except for criminals.
“Could the president grant deferred action to every unlawful, unlawfully present alien in the United States right now?” Roberts asked.
“Definitely not,” said Verrilli, who added that the executive branch would still need to make an effort to remove criminals and recent border-crossers.
Verrilli also made an unusual concession, inviting the court to strike out a portion of Homeland Security Secretary Jeh Johnson’s 2014 memo that described recipients of the deferred action status to be “lawfully present.”
“If the court wants to put a red pencil through it, that’s totally fine,” the solicitor general said. He said the only consequence of that phrase was to make deferred action recipients with work permits eligible for social security benefits.
Top administration officials like Johnson and Attorney General Loretta Lynch were also in court for Monday's arguments, underscoring how Obama’s immigration legacy is on the line in the high court fight. He was not successful in signing comprehensive immigration reform into law during his two terms, and Obama has come under fire from advocates for deporting more than 2 million immigrants during his tenure. Meanwhile, his sweeping executive actions have been blocked for more than a year, and even if the Supreme Court rules in his favor, the administration will have just seven months to jump-start the programs before Obama leaves the White House.
Inside the courtroom, a lawyer for the House of Representatives made that chamber's case against Obama’s executive actions to provide deportation protections and work permits to more than 4 million immigrants who are in the U.S. illegally but are parents of U.S. citizens or green-card holders. Obama’s actions also expanded a 2012 initiative granting those benefits to immigrants who came here illegally as children.
The GOP-controlled House was granted 15 minutes before the court to back up arguments made by Texas and the 25 other states that have sued the Obama administration to stop the programs. House lawmakers also voted along near-party lines last month to submit an amicus brief in the case. Senate Republicans also filed a brief defending the conservative coalition opposing the immigration actions.
Obama’s executive actions are “an unprecedented effort, as the President acknowledged, to ‘change’ the immigration laws by executive fiat,” the House brief says. “Whether couched as a statutory power, a constitutional power, or an implicit component of ‘enforcement discretion,’ that is not a power the Executive possesses.”
On the opposing side, an attorney representing three undocumented mothers from South Texas had 10 minutes to make an emotional appeal on behalf of the immigrant women. The Mexican American Legal Defense and Educational Fund, which, along with law firms O’Melveny & Myers and DLA Piper, is aiding the women, said the mothers would qualify for DAPA and plan to apply if the programs get the green light from the court to proceed.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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