The eight Supreme Court justices appeared evenly split during Monday’s oral arguments in the case over President Obama’s 2014 policy to not deport an estimated four million immigrants illegally living in the U.S.
That is likely a bad sign for the administration because a 4-4 split in U.S. v. Texas would mean that lower court rulings halting the policy would stand.
The court’s conservative block repeatedly grilled U.S. Solicitor General Donald Verrilli over the administration’s position that the 26 states challenging the policy lacked standing to bring their case. The liberal justices challenged the states’ representative, Texas Solicitor General Scott Keller, over his argument that the administration had overstepped its authority.
There was little indication that any of the conservatives – Chief Justice John Roberts and Justices Anthony Kennedy, Sam Alito and Clarence Thomas — or the liberals – Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan or Sonia Sotomayor – were going to break off and grant either side a majority.
Roberts called the Obama administration’s position “a real Catch-22” because it was arguing that any financial harm the states claimed they would suffer could be addressed by changing state laws, but that those changes might not be legal either.
“You would sue them instantly. You would say people are being discriminated against,” Roberts said.
Sotomayor, the court’s lone Latino member, dominated the questioning of Keller. She disputed his argument that only Congress could determine immigration policy. “Congress has chosen to remain silent,” she said.
The case involves 26 mostly Republican-led states that argue that Obama exceeded his powers in 2014 when he said that he would not act to deport an estimated 4 million people illegally living in the U.S. That placed an impermissible financial burden on the states, they argued, since the immigrants would be eligible for benefits such as unemployment and Medicare. Lower courts have agreed with the states, and the policy has been halted since February 2015.
The case revolves around two constitutional questions: Whether the president’s policy, officially called Deferred Action for Parental Accountability or “DAPA,” is allowable and whether the states have legal standing to challenge it.
There also is the question of whether the administration properly followed the Administrative Procedures Act, which sets up the guidelines for establishing federal rules. The administration’s failure to comply was the basis of the original judicial order halting DAPA by Texas federal Judge Andrew Hanen in February 2015. The administration has argued the act doesn’t apply in the case.
The case is of major importance to the administration and to Congress, since it addresses balance of power between the two branches. Obama justified the maneuver by citing Congress’ lack of action on immigration.
Congressional Republican leaders counter that the president refused to compromise on their key issue, that border security come before any mass legalization.
The administration has justified the policies by saying that it was merely “exercising prosecutorial discretion” to not pursue the deportations. The state attorneys general counter that violates the Immigration and Naturalization Act and doing so violates the president’s constitutional obligation to “take care” to faithfully execute the laws of Congress.
During Monday’s oral arguments, the conservatives said the administration was being self-contradictory when it said that while it was allowing the immigrants to remain “lawfully present” in the country it was not conferring legal status on them.
“Lawfully present does not mean you are legally present?” Roberts asked. The administration argued that they were in fact two different legal designations.
Alito asked if the administration would be within its power to declare open borders. Verrilli said it would but added, “But that is a million miles from where we are now.”
Kennedy retorted: “No, it is four million people from where we are now.” The quip drew laughter from the audience.
The liberal justices attacked the states’ claim that the administration did not have latitude to determine who to deport. “All this document [DAPA] does is grant forbearance. It says [to illegal immigrants] you are not a priority,” Kagan said.
Breyer argued that the states were opening a potential Pandora’s Box of excessive litigation if they were granted standing in this case. “Every case of political disagreement where states disagree would come before the courts,” he said.
