The justices of the US Supreme Court appeared split along ideological lines on Monday as they heard arguments in a case that will determine President Barack Obama’s immigration legacy. At issue is Obama’s executive order to temporarily shield more than four million undocumented individuals from deportation, granting them deferred action status and an accompanying work permit.
The president unilaterally imposed the changes in 2014 after the Republican-led House of Representatives blocked bipartisan immigration reform passed by the Senate. The order established a deferred action program for parents who have children born in the US or who have become permanent residents, known as DAPA, and expanded another called DACA that helps young people who were brought to the US as children, known as Dreamers.
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“We’ll bring more undocumented immigrants out of the shadows so they can play by the rules, pay their full share of taxes, pass a criminal background check, and get right with the law,” Obama declared.
But Republicans blasted the order, describing it as “lawless.” Accusing the president of overreach, Texas and 25 other states challenged the order in federal court, winning an injunction that was upheld by a divided Court of Appeals. All 26 states that are challenging Obama have Republican-dominated governments — an indication of just how politically polarizing the issue of immigration has become.
On Monday, the four conservative justices on the bench appeared to sympathize with the administration’s challengers.
Texas Solicitor General Scott Keller argued that the language of the plan is problematic. The administration, Keller argued, “is granting lawful presence. It is saying, even though Congress says you are here unlawfully, the executive is going to say, ‘No, you’re actually here lawfully.’”
Some of the conservative justices echoed Keller.
“How is it possible to lawfully work in the United States without lawfully being in the United States?” Justice Samuel Alito asked.
“I mean, they’re lawfully present, and yet, they’re present in violation of the law?” Chief Justice John Roberts added.
Keller said that the contradiction is worrying “because Congress has said when you go from being here unlawfully to being here lawfully, you are eligible for benefits.
Liberal justices seemed to be leading in Obama’s favor. Borrowing a line from the president when he first announced his initiative to great fanfare in 2014, Justice Sonya Sotomayor noted that about 11 million immigrants currently live “in the shadows.” She added that it’s financially impossible to deport every single one of those people. “They are here whether we want them or not,” Sotomayor said.
Justice Ruth Bader Ginsburg noted that Congress and the legislature has provided only enough funds to deport about four million undocumented people.
“So inevitably, priorities have to be set,” she said.
Keller highlighted what he described as the cost factor in adding four million people to the country’s benefits programs. Medicaid and Social Security are available to every legal worker in the US, so beneficiaries of Obama’s programs who gain a legal work permit and pay their taxes would be entitled to those benefits.
“It seems to be your real gripe here is to the work authorization piece and to the benefits pieces,” Justice Elena Kagan said. “Is that right?”
For the program to go ahead, a justice from the conservative bloc would need to side with the four liberals. The only likely candidates ahead of Monday’s arguments were Chief Justice John Roberts and Justice Anthony Kennedy, both of whom expressed skepticism of the executive order’s merits.
“It’s as if — that the President is setting the policy and Congress is executing it,” remarked Kennedy. “That’s just upside down.”
Roberts expressed similar concerns but appeared to take note when Solicitor General Donald Verrilli, who defended Obama’s policy move, stressed that the deferred action order afforded temporary relief. Reflecting only a change of the administration’s enforcement priorities, it could be reversed by the executive at any time.
The death of conservative Justice Antonin Scalia has upset the dynamic in the country’s highest judicial body. If its ruling in the case produces a 4-4 deadlock, the lower court’s ruling will stand and Obama’s initiative would be blocked indefinitely, but the blow would not stand as a legal precedent.
Apart from offering reassurances on the legitimacy of the president’s action, Verrilli was also intent on persuading Roberts to dismiss the case for lack of standing. States can only challenge the federal government if they can prove that the action harms them in some way.
Verrilli argued that granting states the permission to sue the federal government would “upend the constitutional design,” noting that the “Constitution reserves exclusive authority for the national government to make and enforce immigration policy.”
Texas attorneys are arguing that DAPA and DACA injure the Lone Star state because they would be compelled to give drivers licenses to beneficiaries of Obama’s program. Because the state has chosen to subsidize driver’s licenses, it claims providing licenses to immigrants with deferred action status would cost it millions of dollars.
Texas law allows noncitizens to obtain driver’s licenses. Verrilli maintained that the executive order does not concern licenses, and offered that the Texas could change its law to deny licenses to immigrants who successfully enroll in DAPA or DACA.
Roberts then suggested that the federal government “would sue them instantly,” arguing that the conflict between state and federal policy “puts Texas in a real Catch-22.”
Immigration is a fraught and political hot button issue — increasingly so — as Republican presidential frontrunner Donald Trump has made building a wall along the Mexican border the centerpiece of his campaign platform, and has played on some Americans’ feelings of economic and national insecurity. Trump has also vowed to deport the 11 million people estimated to be living in the US illegally.
A recent Pew Research poll found that opinions on immigration have become increasingly divided along party lines. For over 20 years, Pew has asked people whether immigrants in the US “strengthen our country because of their hard work and talents,” or whether they are a “burden on our country because they take our jobs, housing and health care.”
Between 1994 and 2005, Pew noted, views on immigration among Republicans and Democrats “tracked one another closely.” But around 2006, those views began diverging. Since then, the numbers of Democrats and Democratic-leaning independents in favor of immigration have increased from 49 percent to 78 percent. Meanwhile, only 35 percent of Republicans and Republican leaning independents shared this view in 2006 — which rose by just one percent.
