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.