July | August 2017







U.S. Supreme Court Hears Oral Argument in Important Immigration Case

By Lisa Soronen, State and Local Legal Center
It was a different crowd at the Supreme Court on April 18. The number of children on the courthouse steps may have exceeded the number of adults, and the voices on the microphones were speaking English and Spanish. Inside the courtroom, many members of Congress, cabinet members and foreign dignitaries filled the seats.  Among those present were U.S. Attorney General Loretta Lynch, Sen. Dick Durbin of Illinois, Sen. Bob Menendez of New Jersey, Secretary of Homeland Security Jeh Johnson and chief justice of Canada, Beverley McLachlin.  
United States v. Texas is about different things to different people. For some it is about keeping families together, for some others it is about executive overreach and for many it is about “standing” to sue the federal government.  
At issue in this case is whether the president’s deferred action initiatives—Deferred Action for Parents of Americans, or DAPA, and expanded Deferred Action for Childhood Arrivals, or DACA,—which allow certain undocumented immigrants who have U.S. citizen children to stay and work temporarily in the United States, violate federal law and the Constitution.
More specifically, the case presents four distinct legal issues. Do the states have standing to sue the federal government? Are the administration’s deferred action initiatives not in accordance with the law?  Was the administration required to pursue a “notice and comment” rulemaking to put these policies into effect? And, lastly, whether the president’s actions violate the Take Care Clause and separation of powers principles of the Constitution.
The Supreme Court must first decide whether any of the 26 states challenging DAPA have “standing,” to sue the federal government in the first place.
The Fifth Circuit concluded that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing. 
The more conservative justices, led by Chief Justice John Roberts, seemed skeptical of the United States’ argument that states lacked standing. More specifically, the chief justice asked Solicitor General Don Verrilli, arguing on behalf of the United States, whether the federal government’s position that if a state doesn’t want to incur the cost of providing DAPA participants a license it could just change its law and stop doing so, is a “Catch-22.” Very likely, if a state did so the federal government could sue the state for discrimination. If the court finds the states do not have standing, that will mark the end of the case and the other issues will not be addressed.  
Justice Elena Kagan led the Supreme Court’s more liberal justices who were questioning whether the DAPA program exceeds federal immigration law. She noted that the federal government could decide not to deport a class of low-priority undocumented immigrants, which is part of what DAPA does. She suggested that the problem may not be rooted in DAPA but in the Immigration Reform and Control Act of 1986, which allows some people not lawfully present in the United States to work and receive other benefits. But Texas and the other states have brought this case under DAPA, not the Immigration Reform and Control Act of 1986.
Scott A. Keller, the Texas solicitor general arguing for the 26 states, asserted that these policies were not in accordance with the law and that “DAPA is an unprecedented unlawful assertion of executive power.”
“DAPA would be one of the largest changes in immigration policy in our nation’s history,” Keller argued.
Oral argument—and conventional wisdom—indicate that the Supreme Court may be split 4-4 on both issues in this case. We won’t know for sure, probably, before the end of June. If there is a 4-4 evenly divided court, the decision will stand, but it would not establish a binding precedent in other federal circuit courts.



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