Supreme Court Appears Divided on Immigration Law

     WASHINGTON (CN) – The Supreme Court appeared ideologically split Monday on President Obama’s efforts to delay the deportation of roughly 4 million undocumented immigrants.
     The court’s conservative justices came out swinging with tough questions about whether Obama exceeded authority reserved for Congress by issuing an executive order on immigration, and whether he followed required public notice-and-comment process for new rules.
     Chief Justice John Roberts and Justice Samuel Alito expressed particular concern about language in the executive order that would make recipients of Obama’s program – Deferred Action for Parents of Americans – lawfully present during the period of deferment.
     The justices seemed puzzled by how a person can be both lawfully present and in violation of U.S. immigration law simultaneously.
     Arguing for the Obama administration, U.S. Solicitor General Donald Verrilli denied that DAPA relief changes anyone’s legal status.
     Lawful means tolerated with the ability to work, Verrilli said, suggesting that terminology could be removed from the executive memo.
     DAPA would allow millions of undocumented immigrants who have children that are U.S. citizens or permanent residents to apply for federal work permits and temporary protection from deportation for renewable three-year terms.
     Though meant to take effect in May 2015, the program has been on hold in the face of a challenge by Texas and 25 other Republican-controlled states.
     Since states will bear the cost of issuing driver’s licenses to DAPA qualifiers, U.S. District Judge Andrew Hanen in Brownsville found that they had standing to sue, and the Fifth Circuit in New Orleans agreed last year.
     But Verrilli told the court Monday, however, that Texas’ main bone of contention is work authorization and ancillary benefits, like Social Security, not driver’s licenses.
     Civil rights attorney Thomas Saenz, who supported the government in the proceedings, called it a “political dispute.”
     “They do not agree with the policy adopted by the administration, though they have conceded in this case that it is within the executive’s discretionary authority,” Saenz said.
     President Obama has argued that he has been forced to govern by executive order because of Republican-led intransigence, congressional deadlock and legislative failure to undertake immigration reform.
     Republicans have accused Obama of executive overreach for bypassing Congress.
     Alito suggested the federal government would sue Texas if it refused to provide driver’s licenses to undocumented immigrants as a way to circumvent its claimed injury.
     “Unless you can tell us that there is some way that they could achieve that, then I don’t see how there is not injury in fact,” Alito said.
     Alito and Roberts seemed more concerned, however, with whether executive action could be expanded to incorporate all undocumented immigrants.
     Alito pressed Verrilli on whether such an expansion could be challenged.
     Yes, Verrilli conceded, “but that’s, that’s a million miles from where we are now.”
     “Well, it’s 4 million people from where we are now,” Justice Anthony Kennedy retorted. “What we’re doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act,” Kennedy added.
     Justice Ruth Bader Ginsburg interjected to note “the reality that we have 11.3 million undocumented aliens in the country.”
     “Congress, the Legislature, has provided funds for removing about four million, so inevitably, priorities have to be set,” Ginsburg continued.
     “Right, exactly,” Verrilli responded, noting that the U.S. has resources to deport only 400,000 of them.
     “So we have, we have basically 10 million, nine hundred thousand people that cannot be deported because there’s not enough resources, correct?” asked Justice Sonia Sotomayor.
     Verrilli and Saenz positioned the administration’s immigration policy on deferment as categorizing certain groups of people as low priority for deportation to focus deportations on criminals, terrorists and border apprehensions instead.
     Texas argued, however, that deferred groups under DAPA would have their immigration status transformed.
     Alito seemed to doubt Saenz’s argument that under DAPA parameters an undocumented immigrant could sue a potential employer if that employer believes deferred status does not amount to authorization to work.
     “If that’s true then, DAPA gives them a legal right,” Alito said. “It’s more than just putting them in a low-priority prosecution status.”
     Saenz asserted that the issue of work authorization bears no relation to the issue of Texas’ alleged injury from having to provide driver’s licenses to undocumented immigrants.
     While each of the justices kept the government’s attorney on his toes, the female justices in particular dominated the second half of the hearing when an attorney for Texas gave his argument against DAPA.
     Sotomayor wasted no time jumping in before Texas Solicitor General Scott Keller could finish his second sentence.
     “How can you say that?” she interjected after Keller called DAPA “an unprecedented unlawful assertion of executive power,” and claimed it to be “one of the largest changes in immigration policy in our nation’s history.”
     Sotomayor reminded Keller of the 1990 Fairness Act, which granted deferred action and work authorization to 40 percent of the undocumented population at the time.
     Keller characterized the older law as “a voluntary departure program,” however, and said a question with such “deep economic significance” would require Congress to grant statutory authority first.
     “You know, you keep saying that, ‘deep economic significance,'” Sotomayor retorted. “Those nearly 11 million unauthorized aliens are here in the shadows. They are affecting the economy whether we want to or not.”
     She added: “If Congress really wanted not to have an economic impact, it would allot the amount of money necessary to deport them, but it hasn’t.”
     Justice Elena Kagan took a turn grilling Keller, suggesting he should attack work-authorization regulations, not DAPA.
     Keller dug in his heels, asserting that DAPA is “transforming unlawful conduct into authorized lawful conduct.”
     Redirecting toward the issuing of driver’s licenses, Keller said it would cost Texas millions, and the state would struggle to process the paperwork from an uptick in applications.
     Previous precedent undermines the argument that states can sue the federal government just because something will cost them more money, said Justice Stephen Breyer.
     “Taxpayers all over the country will be suing in all kinds of cases, many of which will involve nothing more than political disagreements of all kinds,” Breyer said. “And before you know it, power will be transferred from the President and the Congress, where power belongs, to a group of unelected judges,” he continued.
     Sotomayor echoed Breyer’s sentiment.
     “That really pits the states against every federal agency,” Sotomayor said. “”And any harm, financial harm that indirectly flows from a change in policy would be subject to attack.”
     In closing rebuttal statements, Verrilli said that the Supreme Court will invite a flood of litigation if it upholds the lower court rulings.
     “If you want proof of that, it already exists,” he said. “Texas is already using this theory to sue the United States based on the resettlement of Syrian refugees in Texas, and that will just be the beginning.
     The court is expected to issue a ruling on the case in late June.

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