HOUSTON (CN) - President Obama's blocked plan to defer deportation for millions of immigrants is headed for judgment day at the Supreme Court and his administration honed its arguments this week in a brief to the court.
Immigration is arguably the most divisive and fraught issue today in the United States.
Look no further than the Republican presidential campaign trail, where Donald Trump vows daily to make Mexico pay for a border wall and Ted Cruz and Marco Rubio, both sons of Cuban immigrants, have accused each other of supporting amnesty for the country's estimated 11 million undocumented residents, whom they have vowed to deport.
Texas and 25 other Republican-controlled states made arguments in their December 2014 lawsuit that are now familiar: that Obama overstepped his authority by issuing an executive order on immigration, that he did not follow the required notice-and-comment process for new rules, and that the states want to prevent the undocumented from taking jobs from legal citizens.
But in its brief to the Supreme Court this week, the Department of Justice says the Deferred Action for Parents of Americans, or DAPA, is a common sense solution to a fundamental problem. It would offer qualifying immigrants the right to live in the United States without being deported for renewable three-year terms and allow them to apply for driver's licenses and federal work permits.
"The federal government cannot remove every removable alien," Solicitor General Donald Verrilli says in the 93-page brief.
The Department of Homeland Security's $6 billion immigration enforcement budget is not enough, the government says, and the record-breaking 2.4 million people who were deported from 2009 to 2014 were so many drops in an ocean.
"In any given year, more than 95 percent of the undocumented population will not be removed, and aliens continue to be apprehended at the border or otherwise become removable," the brief states.
An estimated 5 million people could qualify for temporary lawful presence under DAPA, the goal of which is to keep law-abiding families with deep ties to the United States together and focus resources on deporting serious criminals and recent border crossers.
Verrilli says the program is built on the idea of "deferred action" that presidents have used in more than 20 policies since 1960: From President Dwight D. Eisenhower granting relief in 1960 to Cuban nationals seeking asylum from their country's Communist revolution; to President Ronald Reagan's 1987 "family fairness" policy tweak that shielded from deportation kids whose parents had applied for legal status; to Deferred Action for Childhood Arrivals, DACA, a policy DHS started in 2012 that gave those who came to the United States as children, and who have lived here since 2007, two-year lawful presence rights.
Texas claims DAPA is a substantive rule change to the Immigration and Nationality Act that must undergo a notice-and-comment process. The Fifth Circuit agreed in November, upholding an injunction that U.S. District Judge Andrew Hanen in Brownsville, Texas issued in February 2015.
"That is incorrect," Verrilli says in the brief, which asks the Supreme Court to reverse the Fifth Circuit ruling. "It does not change the law in any way or create any new immigration categories. DHS can unilaterally revoke deferred action, without notice or process, and pursue removal."
The Fifth Circuit found that Texas has standing because it will foot the bill for DAPA recipients' driver's licenses.
But the federal government argues that Texas can choose whether to subsidize driver's licenses for such immigrants.
Because Texas subsidizes its driver's licenses - it does not make applicants pay processing fees - it would pay $130.89 for each license issued to a DAPA beneficiary, which could add up to millions, since an estimated 500,000 people could qualify in Texas, Judge Jerry E. Smith wrote for the Fifth Circuit in November.
"The cost to Texas of subsidizing temporary visitor driver's licenses for aliens - is entirely self-generated. Texas created and Texas can eliminate the effect of the link to federal law that allegedly has caused Texas harm," Verrilli's brief states.
"If such self-imposed harms were sufficient, then States could force disputes over a wide swath of federal policies into the federal courts by the simple expedient of linking a state tax or subsidy to a federal standard."
Something to consider is what impact the death of Justice Antonin Scalia will have on the case.
"The effect will be small to none, because his vote, almost certainly, would not have been decisive," University of California-Davis law professor Gabriel "Jack" Chin told Courthouse News.
Chin said if the court splits 4-4, then the injunction will stand, as it would if Scalia cast the deciding vote against DAPA. Scalia would likely have voted against DAPA: in a dissent he wrote in a 2012 case he said he disagreed with Deferred Action for Childhood Arrivals.
"It is unlikely that Justice Scalia would have been in a 5-4 majority to reverse [the injunction]; if Justice Scalia would also have voted to reverse, then at least the Chief Justice John Roberts, Justice Anthony Kennedy, or both, will likely do so now," Chin said.
"Of course, his absence may affect oral argument. But in a case like this, oral argument is unlikely to change many minds."
Chin is among 109 immigration law professors who believe DAPA is "well within the secretary of the Department of Homeland Security's express statutory authority to establish national immigration enforcement policies and priorities," they wrote in an April 2015 amicus brief to the Fifth Circuit.
The Supreme Court is expected to hear arguments in April and issue a ruling by the end of June.