Justices Grill Friends, Foes of Obama Immigration Programs

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By Laura D. Francis

April 18 — The U.S. Supreme Court heard different perspectives April 18 on whether the Obama administration should be allowed to implement two deferred action programs that would provide deportation relief and work permits to an estimated 5 million undocumented immigrants.

The fate of the deferred action for parents of Americans and lawful permanent residents program and the expanded deferred action for childhood arrivals program—the hallmarks of the president's 2014 executive action on immigration—hinges on the justices' ruling. Both programs have been on hold since a federal judge in Texas blocked them in February 2015 (31 DLR AA-1, 2/17/15).

Texas and the 25 other states that sued over the programs claim that they go well beyond the president's power to set immigration enforcement priorities.

But a key question in the case is whether the states' claimed expenditure on driver's licenses for DAPA and expanded DACA beneficiaries is too speculative an injury to give them standing to sue in the first place.

Solicitor General Donald Verrilli, who argued on behalf of the Obama administration, said that was the case. In fact, he argued, nothing in DAPA or DACA requires driver's licenses at all.

But Chief Justice John Roberts suggested that the federal government would come after Texas if it denied licenses to DAPA recipients.

Roberts: Texas in ‘Catch-22.'

“I just think that's a real Catch-22,” Roberts said. The administration is arguing that Texas lacks standing because the state could deny licenses to DAPA recipients, but should it adopt such a policy, “you would sue them instantly,” he said.

“It would depend on what they did” in terms of the basis for the policy, Verrilli said. But that goes to the heart of why there isn't standing in this case, he said: It would require the justices to issue an advisory opinion based on what Texas might or might not do with respect to its driver's license policy.

Allowing standing in this instance would be “the first time in our history” that the court allowed standing based on such an indirect injury, Verrilli said.

Roberts asked whether the states' alleged injury here is more indirect than that in Massachusetts v. EPA, 549 U.S. 497, 75 U.S.L.W. 4149 (2007). In that case, the Supreme Court found that Massachusetts had standing to challenge the Environmental Protection Agency's alleged lack of regulation of greenhouse gas emissions, based on the anticipated loss of a portion of its coastline to climate change.

There are “two fundamental differences” between this case and Massachusetts v. EPA, Verrilli said.

The first is that the Clean Air Act charges the EPA with protecting the states, thus creating a cause of action allowing them to sue, he said. Second, Massachusetts couldn't avoid the environmental effects of the EPA's policy, whereas here, Texas could alter its driver's license policy, he said.

Intervening Plaintiffs: ‘Speculative Budgetary Injury.'

Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, made similar arguments. Arguing on behalf of three potential DAPA beneficiaries who were allowed to intervene as parties to the case, Saenz called the states' basis for standing an “indirect and speculative budgetary injury.”

Justice Stephen Breyer asked whether Texas has any injury from DAPA other than the monetary injury from providing additional driver's licenses. Saenz said there wasn't.

But “isn't losing money a classic case of standing?” Roberts asked.

For private individuals, yes, Saenz responded. But there are additional considerations when states are parties, he said.

Arguing for the states, Texas Solicitor General Scott Keller repeated Roberts's assertion that the state is in a Catch-22 when it comes to driver's licenses.

Justice Sonia Sotomayor questioned whether Texas needs to hire additional staff for its motor vehicle department offices. For one, not all presumably qualified immigrants will actually qualify for DAPA and expanded DACA, and not all will want driver's licenses, she said. Furthermore, applicants could just wait longer for licenses, she suggested.

Breyer: Taxpayer Standing Analogy

Breyer analogized the case to Massachusetts v. Mellon, 262 U.S. 447 (1923), a Supreme Court case involving taxpayers suing over the additional money they would have to spend to fund the benefits conferred under a federal policy.

There, the court said allowing standing would result in taxpayers all over the country being able to challenge any federal policies they dislike, he said.

Massachusetts v. EPA was different because it involved a state's coastline, and thus its sovereign territory, Breyer said. This case, like Massachusetts v. Mellon, involves the expenditure of money, he said. “I want to know how you get around that.”

The Supreme Court has recognized that “states bear the consequences of illegal immigration,” Keller argued. Furthermore, they are within the zone of interests protected by immigration law, he added.

Much of the oral arguments also centered around the exact nature of the states' challenge to DAPA and expanded DACA.

Work Authorization the Real Issue?

Verrilli said the states conceded that the programs would be lawful if they only involved deportation relief. It is the provision of work authorization as well as other benefits that is the crux of the case, he said.

Work authorization for deferred action recipients is separate and distinct from DAPA and expanded DACA, Verrilli said. It dates back to a 1987 regulation issued by the Immigration and Naturalization Service that the states aren't challenging, he said.

Justice Samuel Alito asked Verrilli whether it would be permissible for the president to adopt an open borders policy. Verrilli said it would not, arguing that there is a distinction between setting enforcement priorities and lack of enforcement.

Use of the term “lawful presence” in this context “has caused a terrible amount of confusion,” Verrilli said. Immigrants who are considered lawfully present don't have any lawful immigration status and no rights, he asserted.

Rather, the term means that undocumented immigrants' presence is “officially tolerated,” he said.

But if the federal government admits that someone is in the country unlawfully, how is it possible that it would be lawful for him or her to work? Alito asked.

Providing work authorization “makes sense” from a policy standpoint, Verrilli said. But he added that there are “millions” of immigrants without lawful status—outside of DAPA and expanded DACA—who have been granted work authorization. They include some 3.5 million work permits granted to individuals who have applied for adjustment of status to lawful permanent resident since 2008, as well as about 325,000 work permits granted to individuals who are seeking cancellation of removal, he said.

If, as the states argue, the administration needs specific statutory authority to grant work permits to each and every category of immigrant, all of those work authorizations also would be null and void, Verrilli said.

States Say Prior Actions Had Authorization

Keller, however, argued that similar executive actions did have a statutory basis.

Sotomayor brought up the Family Fairness program adopted under President George H.W. Bush, which protected some 1.5 million undocumented immigrants from deportation, about 40 percent of the undocumented population at the time. She asked how Keller could claim DAPA is “unprecedented” when it only purports to protect about 35 percent of the current undocumented population.

But the Family Fairness program was based on voluntary departure, which had statutory authority, Keller said. Similarly, programs based on temporary protected status, humanitarian parole and deferred enforced departure also have their roots in a statutory or constitutional authorization, he said.

Keller disagreed with Verrilli that Texas and the other states would approve DAPA and expanded DACA if they only deferred deportation, without also granting work authorization.

Simply deciding not to deport large categories of immigrants that are deemed low priority would be fine, he said. But that isn't what deferred action or lawful presence means, Keller asserted. “Lawful presence” is in fact an immigration status that comes with benefits, even separate from work authorization, he said.

Justice Elena Kagan suggested that if Texas isn’t opposed to deferring deportation, it should be challenging the 1987 regulations, “but not DAPA itself.”

But Keller disagreed. He said that conferring lawful presence is transforming unlawful conduct into lawful conduct, which only Congress can do. That would be the case even if the administration granted lawful presence one-by-one, rather than via a large category of individuals, he said.

House: ‘Status That Has Consequences.'

Bancroft PLLC attorney Erin Murphy, arguing on behalf of the House of Representatives, agreed with Keller that deferred action “is a status that has consequences.” Deferred action isn't the same as simply deciding not to remove someone, and so “you can't cross it out and achieve what DAPA is trying to achieve,” she said.

Justice Ruth Bader Ginsburg asked whether the House would be amenable to the administration simply handing out cards to undocumented immigrants stating that they are low enforcement priorities.

Murphy said the House “would have concerns” over such a policy, but she pointed out that DAPA and expanded DACA go far beyond that, affirmatively stating that the administration wants beneficiaries to work and obtain other benefits.

In response to Kagan, Murphy said whether the administration could achieve the same result one-by-one or on a smaller scale would depend on the circumstances. But she stressed that there is “no past practice” like DAPA.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com