The U.S. Supreme Court appears divided over President Barack Obama鈥檚 program offering work permits and relief from deportation to some 4 million unauthorized immigrant parents of children who are U.S. citizens.
The question of whether Texas and 25 other states have legal 鈥渟tanding鈥� to challenge the Deferred Action for Parents of Americans program dominated the 90 minutes of intense arguments in United States v. Texas (Case No 15-674) April 18.
The DAPA program and an expansion of an earlier program aimed at young people hold an array of implications for the nation鈥檚 schools, parents, and students.
Although the arguments did not get into some of the particulars of school-related issues raised in some of the briefs, the human dimension of the immigration debate did not go unmentioned.
鈥淭here is a pressing humanitarian concern in avoiding the breakup of families that contain U.S. citizen children,鈥� said U.S. Solicitor General Donald B. Verrilli Jr. in defending the administration鈥檚 program.
Justice Sonia Sotomayor said that some 11 million total unauthorized immigrants are 鈥渉ere in the shadows鈥� and are part of the economy, like it or not.
She suggested the administration had the executive authority to create the DAPA program because of congressional inaction on immigration reform.
鈥淗ere, we have a Congress that鈥檚 decided鈥攕ome members of the Congress have decided they don鈥檛 like [immigration legislation]鈥攁nd so Congress has remained silent,鈥� Sotomayor said.
Justice Ruth Bader Ginsburg said that Congress was not providing the executive branch all the resources it would take to deport all 11 million undocumented immigrants.
鈥淚nevitably, priorities have to be set,鈥� she said.
Justices Stephen G. Breyer and Elena Kagan also expressed support for the administration鈥檚 position.
Costs of Driver鈥檚 Licenses, Schools
Meanwhile, three justices of the court鈥檚 more conservative bloc expressed varying degrees of sympathy for the states鈥� position, while conservative Justice Clarence Thomas remained silent but is expected to lean toward the states, as well.
Justice Samuel A. Alito Jr. expressed support for a lower court鈥檚 ruling that at least Texas, among the plaintiffs, had legal standing to challenge the program because it would have to provide driver鈥檚 licenses to the DAPA recipients.
In blocking the Obama administration鈥檚 program, lower courts held that Texas had standing because it would incur additional costs for issuing driver鈥檚 licenses if some 500,000 unauthorized immigrant parents received notice from the federal government under the DAPA program that they were not a priority for deportation.
In its brief, Texas cites not only increased costs it would face to issue driver鈥檚 licenses to those who gained relief under the DAPA program, but additional education costs of some $58 million per year 鈥渟temming from illegal immigration,鈥� presumably from an increase in families with a mix of undocumented members and U.S. citizen children.
鈥淒APA is an unprecedented assertion of executive power,鈥� Texas Solicitor General Scott A. Keller told the justices.
Verrilli, who was defending the program, faced some sharp questioning from Alito.
Texas doesn鈥檛 鈥渨ant to give driver鈥檚 licenses to the beneficiaries of DAPA,鈥� Alito told Verrilli. 鈥淎nd unless you can tell us that there is some way that they could achieve that, then I don鈥檛 see how there is not injury in fact.鈥�
Chief Justice John G. Roberts Jr. suggested that Texas and other states should be able to challenge the program based on increased costs. 鈥淚sn鈥檛 losing money the classic case for standing?鈥� Roberts said.
On the merits, Justice Anthony M. Kennedy expressed some support for the states. He said that when it came to an immigration policy affecting some 4 million people, 鈥渨hat we鈥檙e doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act.鈥�
Because lower courts approved an injunction blocking the initiative, the administration must win five votes on the eight-member court (with the late Justice Antonin Scalia鈥檚 seat still vacant) to revive the program.
Considerable discussion took place last week on what the DAPA program would actually do, given that it builds on other federal immigration laws and regulations that all sides agree already give the executive branch wide discretion on deferring deportation of various classes of noncitizens.
DAPA 鈥渄oes not confer any immigration status,鈥� Verrilli said.
Roberts and Alito pointed to what they viewed as inconsistent language in the administration鈥檚 defense of the program that DAPA recipients may 鈥渨ork lawfully鈥� but not be considered to be here legally.
鈥淚鈥檓 just talking about the English language,鈥� Alito said.
Verrilli suggested there were fine lines between the meanings of various words and phrases in immigration law, especially the idea of 鈥渓awful presence.鈥�
A decision in the case is expected by late June.
