With the Chief Justice of the Supreme Court of Canada inside the Courtroom and thousands of demonstrators outside, the U.S. Supreme Court heard oral arguments today in the challenge to the policy known as “DAPA”: Deferred Action for Parents of Americans and Lawful Permanent Residents. The Obama administration issued DAPA in November 2014 after efforts on immigration reform in cooperation with Congress were a bust. DAPA would allow undocumented immigrants to apply for a program that would allow them to stay in the United States legally for three years and work in the United States, as long as they can meet two criteria: they have been in the country since January 2010 and have children who are either U.S. citizens or lawful permanent residents (also known as “Green card” holders). But the policy has never gone into effect: Texas and over two dozen other states went to court to block it, and up to now they have succeeded.
With just over nine months remaining in the Obama administration, the policy’s fate hangs in the balance. More broadly, the issue of immigration is playing a central role in the 2016 presidential campaigns, particularly on the Republican side. And so, on the one hand, the relatively subdued atmosphere in the Court belied the high stakes in the case. On the other hand, a lot has changed on the Court since it announced earlier this year that it would weigh in on the policy – most notably, the death of Justice Antonin Scalia on February 13. It was almost as if the eight members of the Court had tacitly recognized that they may not be able to put together five votes either to uphold or strike down the policy. And if the Court were deadlocked at four to four, the lower court’s decision banning implementation of DAPA would stay in effect. For the Obama administration and the four million undocumented immigrants who could benefit from DAPA, that news would be almost as bad as a decision striking down DAPA altogether.
There are several different issues relating to DAPA before the Court, three of which more or less boil down to one question: did the Obama administration have the authority to issue DAPA at all? But before the Justices can reach that question, there is a threshold question that they have to resolve – whether Texas and the other states have the right to be in court to challenge DAPA in the first place. This is a legal doctrine known as “standing,” and although it sounds like a bit of a technicality it is actually quite important, because the Justices can only review the case if they themselves agree that Texas and the other states have standing.
The lower court held that the lawsuit could go ahead because, at the very least, Texas had standing. If DAPA were to go into effect, it reasoned, tens or even hundreds of thousands of undocumented immigrants in Texas would become eligible for driver’s licenses, which would impose new costs on the state.
Before the argument, immigrants’ rights supporters had hoped that Chief Justice John Roberts, who has sometimes taken a narrow view of who has standing to file a lawsuit, might provide a vote to throw the lawsuit out on the ground that even Texas does not have standing. Roberts’s comments today suggested that they could be disappointed. Addressing Solicitor General Don Verrilli, who argued on behalf of the federal government that Texas lacked standing because it could simply avoid any additional costs by changing its policy regarding who can obtain driver’s licenses, Roberts complained that Verrilli had put Texas in a “real ‘Catch-22.’” If Texas has been injured, Roberts reasoned, it would have standing to sue. But if it were to change its rule and not give driver’s licenses to the group of people affected by DAPA (in which case it would not have a right to sue), the federal government might sue it. And later, Roberts asked Thomas Saenz – an attorney who appeared on behalf of several undocumented immigrants who could benefit from DAPA – almost rhetorically, “Isn’t losing money a classic case for standing?”
Several of the Court’s more liberal Justices seemed more convinced that Texas (and therefore the rest of the states) lacked standing to sue. Observing that “old Supreme Court cases never die,” Justice Stephen Breyer referred back to the Court’s earlier cases ruling that taxpayers cannot sue to challenge a federal benefit or law simply because it will cost them more money; moreover, a state can’t sue on its citizens’ behalf because it is a dispute between the federal government and its citizens. Texas Solicitor General Scott Keller countered that DAPA would inflict financial harms on the state’s own treasury, as well as harms to its sovereignty. Verrilli would echo Breyer’s concerns later, in his rebuttal, when he told the Court that allowing Texas to sue here would open the floodgates to all kinds of suits by the states against the federal government. Texas is already using the same theory, he reminded the Court, to sue the United States to block the resettlement of Syrian refugees in Texas.
Justice Sonia Sotomayor appeared even more skeptical of Texas’s standing claim, but for purely practical reasons. She seemed dubious that Texas would actually have to spend any more money if DAPA went into effect and more undocumented immigrants were eligible for driver’s licenses in Texas. Telling Keller that “I know, because I have experienced it, that the lines” at the Department of Motor Vehicles “are very long,” she seemed to be suggesting that an influx of new applicants wouldn’t really make much of a difference – just more of the same long lines. Keller responded that the state would expect a “spike” in driver’s license applicants; there’s more to do, he explained, than “just processing paperwork.” But Sotomayor, at least, was unconvinced, asking Keller (and, by extension, her colleagues on the bench), “Are we really going to accept at face value something that might not be true?”
On the merits of the states’ arguments, Sotomayor and Justice Ruth Bader Ginsburg both emphasized the gap between the number of undocumented immigrants in the United States who are potentially subject to deportation (nearly eleven million) and the much smaller number (approximately 400,000) who are actually deported each year. “Priorities have to be set,” Ginsburg maintained; her tone left little doubt that, in her view, the administration had discretion to set those priorities, especially when Congress has historically only allocated enough money for the executive branch to deport a very small fraction of those who are in the country illegally.
But the Court’s more conservative Justices took a different view of the administration’s actions. Roberts noted that, when President Barack Obama announced an earlier program to allow young adults who came to the country illegally as children to remain in the country, Obama had indicated that a broader policy would be “ignoring the law.” And when Verrilli dismissed a hypothetical in which the president announced that no one would be deported as “a million miles” from where we are now, Justice Anthony Kennedy retorted that “it’s four million people from where we are now.” “What we’re doing,” Kennedy contended, “is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act.” He put the point even more bluntly a few moments later, telling Verrilli that “all of the briefs go on for pages to the effect that the president has admitted a certain number of people and then Congress approves it. That seems to me to have it backwards,” Kennedy complained.
The Court’s more liberal Justices also emphasized that the Obama administration could have accomplished much the same thing as DAPA merely by officially designating undocumented immigrants who qualify as a “low priority” for deportation.
However, Keller and Erin Murphy, an attorney arguing on behalf of the House of Representatives, weren’t buying it; nor were the Court’s more conservative Justices. Keller stressed that deferring deportation on an individual, case-by-case basis or even deciding not to deport a whole class of immigrants is very different from granting undocumented immigrants “lawful presence” in the United States. In essence, Keller was saying, DAPA would give a group of undocumented immigrants a new legal status that would in turn give them access to benefits and privileges, including driver’s licenses in Texas. Alito seemed to agree. When Saenz answered a question about whether someone who received deferred action under DAPA could sue an employer who declined to hire him because of his immigration status in the affirmative, Alito pounced. That means, he said, that DAPA would do “more than putting someone in low priority”; it would give him “a legal right.”
Verrilli tried to reassure the Justices that, in immigration law, the phrase “lawful presence” is a term of art that does not necessarily signal that an immigrant is legally present in the United States. And indeed, he told the Justices, the phrase could easily be deleted from DAPA, with no effect on how the policy worked. But Verrilli’s explanation left Alito puzzled: “How,” he asked, “is it possible to lawfully work in the United States when you are not lawfully present here?”
As is so often the case, Justice Elena Kagan tried to find a way out of the potential for gridlock on the Court. “Your real gripe here,” she told Keller, is not whether an undocumented immigrant gains “lawful presence” in the United States, because that is “just a label.” Instead, she suggested, Texas’s focus should be the regulations that would allow the immigrants benefitting from DAPA to work in the United States and have access to Social Security benefits, rather than DAPA itself. And if that were the case, Kagan was clearly thinking, the Court would not need to weigh in on DAPA – and the case might go away. Kagan didn’t seem to get many takers today; whether five Justices will in the end fall behind this or any other outcome remains to be seen.