A divided Supreme Court considered President Barack Obama’s far-reaching immigration program affecting 4 million people Monday as hundreds of chanting protesters gathered outside.
The court heard oral arguments in Texas v. U.S., a challenge by the Lone Star State and 25 other states to the Obama administration’s 2014 policy allowing immigrant parents of U.S.-born or legal-resident children who have here illegally since 2010 to defer deportation and get work permits.
Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, never took effect, because Texas secured a preliminary injunction against it. (The Deferred Action for Childhood Arrivals, DACA, program applies to children brought to the U.S. illegally and is not affected by this case, except for the administration’s proposal to extend the work permit for so-called Dreamers to three years from two.)
Chief Justice John Roberts Jr. sparred Monday with Solicitor General Donald Verrilli Jr. over the government’s position that Texas did not have “standing” to sue the federal government. The state claims that having to issue an additional 500,000 driver’s licenses as a result of the program is a burdensome cost that gives it the right to sue.
The government counters that states would be able to sue over any program or regulation to which they objected.
This class of aliens is the lowest priority. And there is a pressing humanitarian concern in avoiding the breakup of families that contain U.S. citizen children.
U.S. Solicitor General Donald Verrilli Jr.
Justice Anthony Kennedy, often the swing vote when the court had nine members, questioned the administration making a decision that he said belonged to Congress. “That seems to me to have it backwards. It’s as if – that the president is setting the policy and the Congress is executing it. That’s just upside down.”
(There are currently eight members of the court after Justice Antonin Scalia died in Texas in February.)
Obama acted after lawmakers failed to pass a comprehensive immigration overhaul in 2014. The Supreme Court case is considered to be extremely political, with immigration a front-burner issue in the 2016 presidential campaign.
While the court seemed split during the oral arguments, White House Press Secretary Josh Earnest noted that rulings on the Affordable Care Act illustrate “how unwise it is to try to draw conclusions about the likely decision of the Supreme Court based solely on the questioning of the justices.”
He said a number of pundits had offered “some rather dire predictions” about Obama’s signature law after watching the court proceedings, only to end up “with some egg on their face” when the law was upheld.
In the presidential race, front-runner Donald Trump has made immigration a centerpiece of his campaign, calling for the deportation of the approximately 11 million immigrants who are in the U.S. illegally.
To qualify for deferred action under DAPA, individuals must have lived continuously in the United States since Jan. 1, 2010, have to register with the government and must pass a criminal background check.
Former Secretary of State Hillary Clinton, front-runner for the Democratic nomination, issued a statement on the case. “President Obama acted within his legal and constitutional authority in halting the deportation of parents and children, and I hope the court will uphold his actions,” she said. “If elected president, I will do everything I can to protect the president’s executive actions and go further to bring more people relief and keep families together.”
Justice Sonia Sotomayor sparred with Texas Solicitor General Scott Keller over the millions of immigrants in the United States illegally. Keller told her, “Congress has to grant the statutory authority first for the executive to be able to act. And to do so, on a question that’s of this deep economic significance, it would have to do so expressly.”
Sotomayor retorted, “Those nearly 11 million unauthorized aliens are here in the shadows. They are affecting the economy whether we want to or not. The answer is, if Congress really wanted not to have an economic impact, it would – it would allot the amount of money necessary to deport them, but it hasn’t.”
The three female justices interjected frequently throughout the 90-minute argument – Justices Elena Kagan and Ruth Bader Ginsburg following on each other’s comments and those of Sotomayor. Justice Clarence Thomas did not ask any questions, as is his custom, but he is considered a reliably conservative vote.
Observers were as deeply divided as the court:
Texas Attorney General Ken Paxton said in a statement, “Our lawsuit to stop President Obama’s illegal immigration policy is about a concept as old as the nation’s founding: that one person cannot unilaterally change the law.”
Rebecca Acuña, executive director of the Dallas-based Latino Center for Leadership Development, said in a statement what the mostly Latino demonstrators were saying outside the Supreme Court.
“The outcome of these decisions could have a life-changing impact on Texas families while also providing an economic boost to our state,” she said. “These policies will allow families with deep ties to this country to legally work and contribute even more to our economy.”
A decision is expected in June. In the case of a 4-4 tie, the injunction would stay in place.
Lesley Clark contributed to this report.