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April 18 — The future of millions of immigrants who entered the U.S. illegally took center stage during oral argument at the U.S. Supreme Court.
Twenty-six states—led by Texas—are challenging President Barack Obama's authority to adopt the Deferred Action for Parents of Americans and Lawful Permanent Residents, which could result in “lawful presence” for more than 4 million immigrants whose children are U.S. citizens or lawful permanent residents. Those immigrants would be allowed to work in the U.S. temporarily.
The program—known as DAPA—is just an extension of the executive's historical discretion to determine which of the more than 11 million immigrants to deport, U.S. Solicitor General Donald Verrilli Jr. told the justices.
There are 11.3 million undocumented immigrants but Congress has only provided enough resources to deport about 400,000, the federal government said in its brief.
So, as Justice Ruth Bader Ginsburg put it, “inevitably, priorities have to be set.”
But DAPA does more than just set enforcement priorities, Justice Samuel A. Alito Jr. suggested. “DAPA beneficiaries may lawfully work in the United States; isn't that correct?” he asked Verrilli.
It wasn't clear, however, that the states had standing to make that argument.
The justices seemed divided over both the merits and the standing questions during the 90-minute argument.
A 4-4 split here would be a loss for the Obama administration, as it would leave in place the lower court's ruling. The U.S. Court of Appeals for the Fifth Circuit stayed DAPA nationwide while the states and the federal government fight it out in court.
DAPA is an unprecedented and unlawful use of executive action, said Texas Solicitor General Scott Keller, arguing for the states challenging the program, said.
But the states have already acknowledged that the executive has the authority to defer deportation on these immigrants, Verrilli said. The real disagreement—or “gripe,” as Justice Elena Kagan called it—is with the work authorization, Verrilli said.
The work authorization is based on a Department of Homeland Security regulation that has been in place since 1986, Justice Sonia Sotomayor said. So Congress has acquiesced to the work authorization for those with deferred deportation, she said.
“It's as if the president is setting the policy and Congress approves it,” Justice Anthony Kennedy said. “That's just upside down,” he said, suggesting that the regulation might not be lawful.
But the states here haven't challenged that regulation, Kennedy said. “Why wouldn't the appropriate way for Texas to proceed have been to challenge the regulation”—not DAPA—under the Administrative Procedure Act, he asked Bancroft PLLC's Erin E. Murphy, who represented the House of Representatives as amicus curiae supporting the states.
Even without the regulation, DAPA does more than just defer deportation, Murphy said.
It grants legal status to certain immigrants too, in that it makes them “legally present” in the U.S., Murphy said.
“Lawfully present” doesn't mean in the U.S. legally for immigration purposes, Verrilli said.
“I'm sorry, just so I get this right,” Chief Justice John G. Roberts Jr. interjected. “Lawfully present does not mean you're legally present?” Correct, Verrilli replied.
The term “lawful presence” has “caused a terrible amount of confusion in this case, I realize that,” Verrilli said. But it doesn't mean that you have a legal right to be in the U.S., he said.
It “means something different to people in the immigration world,” Verrilli said. The term's significance is a “technical legal significance with respect to eligibility for Social Security,” he said.
If the court thinks the term is a problem, the federal government will “put a red pencil through it,” Verrilli said.
But DAPA was intended to allow certain immigrants to work while they are in the U.S., Murphy said.
That's something that the executive can perhaps do on a one-by-one basis, but it can't do it on a class-wide basis, she said.
That's important, Kagan interjected. “You're basically saying that DHS, going forward, any administration cannot have any kind of policy, even if it's limited, much more limited than this kind of policy if that allows undocumented aliens to work,” she said.
“That would be an enormous change in practice,” Kagan said.
The justices seemed to disagree fervently over whether the states could even make that argument—that is, whether the states have standing to challenge DAPA.
The political implications of this case are huge, Justice Stephen G. Breyer said, noting that there are senators and states on both sides of the briefing.
If states are allowed to sue to challenge national policies, Breyer said, then “before you know it, power will be transferred from the president and the Congress, where power belongs, to a group of unelected judges.”
Keller argued that Texas faces actual harm because it will have to pay millions of dollars issuing driver's licenses to people eligible for deferred deportation under DAPA.
Isn't “losing money the classic case for standing?” Roberts asked.
When the Supreme Court agreed to hear the case it added a question about the Constitution's obscure take care clause to the list of issues the parties should address. The oral arguments, however, didn't venture into that uncharted territory.
Thomas A. Saenz of the Mexican American Legal Defense and Educational Fund also argued on behalf of intervenors who are three Texas mothers who could benefit from DAPA.
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