Supreme Court Appears Split On Obama’s Immigration Actions

4-4 tie would be a loss for the White House

Immigration activists in Washington use a smartphone to watch President Barack Obama's speech on his immigration executive action on Nov. 20, 2014. (Photo By Bill Clark/CQ Roll Call)
Immigration activists in Washington use a smartphone to watch President Barack Obama's speech on his immigration executive action on Nov. 20, 2014. (Photo By Bill Clark/CQ Roll Call)
Posted April 18, 2016 at 12:43pm

The Supreme Court appeared sharply divided Monday at oral arguments over the Obama administration’s immigration executive actions, casting doubt over the future of policies that could affect millions of people who are living in the country illegally.  

In 90 minutes of arguments, questions from two key justices in the case — Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy — seemed to suggest agreement with arguments that the Obama administration overstepped its authority with the actions.  

The questions from Roberts and Kennedy cut against the administration’s arguments on pivotal legal questions in the case. To save the policies, the Obama administration’s best hope would be to win over one of those typically conservative justices on the shorthanded, eight-member court.  

The court is expected to rule in the case by June, in the heat of a presidential contest that has included harsh rhetoric about immigration.  

Texas and 25 other states, mostly governed by Republicans, say the Obama administration overstepped its authority with a program, called DAPA, that allows undocumented immigrant parents of U.S. citizens and legal residents to stay in the country and get work authorization and other government benefits. DAPA could affect more than 4 million people who have lived in the United States for at least five years.  

The executive actions also sought to expand a similar program, called DACA, for undocumented immigrants who came to the United States as children.  


Legislative vs. Executive Act Roberts asked Solicitor General Donald B. Verrilli Jr., arguing on behalf of the Obama administration, whether arguments supporting the DAPA program had any limit. For instance, Roberts asked, “under your argument, could the president grant deferred removal to every unlawfully present individual in the United States?”  

Verrilli replied that millions of people who are in the country illegally already have work authorizations for other reasons. He later added that hypothetical executive actions that go beyond DAPA are “a million miles away from where we are now.”  

Kennedy jumped in at that point to say that the administration seemed to have taken over the role of Congress by exhibiting broad discretion in its interpretation of laws to justify the immigration actions.

“It’s 4 million people from where we are now,” Kennedy said. “What we’re doing is defining the limits of discretion. And it seems to me it is a legislative, not an executive act.”

Kennedy also said the DAPA program makes it seem as if the president is setting policy and Congress is executing it.  

“That’s just upside down,” Kennedy said.  

All four liberal justices appeared to support the Obama administration’s position, leaving open the possibility that the court could split 4-4. Such a result would be a loss for the Obama administration, because that would uphold a lower court ruling that, so far, has halted implementation of the actions President Barack Obama announced in November 2014.

The arguments did leave room for a possible compromise of sorts that could allow people here illegally to stay but not get work benefits. Scott Keller, the solicitor general of Texas, admitted under questioning from Justice Elena Kagan that the government could defer deportation for the 4 million people covered under the DAPA program. But he said the government could not grant “lawful presence” as the DAPA directive specifies, which triggers work authorization and other benefits.

“Now, if it’s continued unlawful presence, they’re not authorized to be in the country; we don’t have to issue driver’s licenses,” Keller said. “They can’t get deferred action and they can’t get Medicare, Social Security, gun possession.”

Driver’s Licenses

The issuance of driver’s licenses is a key part of the case and could be the issue on which the court ultimately decides the case. The U.S. Court of Appeals for the 5th Circuit, in a 2-1 ruling, decided in November in this case that Texas can challenge the executive actions because it would be financially injured. The state faces millions of dollars in costs if undocumented immigrants got drivers licenses and other benefits.

Texas argued that states have a legal right to bring the case — called standing — based on those financial injuries. Kennedy and Roberts asked questions that appeared skeptical of the Obama administration’s argument that the state’s subsidized driver’s licenses was not a significant enough harm to the state to allow the lawsuit, in part because Texas could change their law to stop subsidizing drivers licenses.

An attorney representing the U.S. House of Representatives, Erin Murphy, argued for 15 minutes, telling the justices that the executive actions exceed what Congress had authorized in law. Congress declined the Obama administration’s request three years ago for legislation to allow people living in the country unlawfully to stay, work and receive benefits, Murphy said.

A comprehensive immigration overhaul bill with a pathway to legal status passed the Senate in 2013, but the House did not act. The debate over what many Republicans consider amnesty for lawbreakers is a sticking point to legislative action.

“It was a pathway to lawful presence in the country that would have allowed individuals to have a legal status, to remain in the country and Congress has not created a legal status for the category of individuals covered by DAPA,” Murphy said.

The actions go beyond merely deferring deportations, but converts those DAPA participants into a “lawful presence” that has specific meanings in federal law, Murphy told the justices.


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