On April 18, the Supreme Court heard oral arguments in the case of United States v. Texas. The case involves the arguments put forward by twenty-six states, challenging the President’s November of 2014 Executive Action, which could have made around 5 million parents of citizens and lawful permanent residents (known as DAPA) eligible to apply to have their deportation deferred. It would also have slightly expanded the class of pre-existing eligibility for deferred action for childhood arrivals (DACA), already in effect since 2012. The mechanism through which executive action would take place is the President’s request that his subordinates within the prosecutorial arms of DHS exercise their prosecutorial discretion in determining where and how to use and focus limited deportation resources. Congress enacted the Immigration and Nationality Act, tasking the agencies with enforcing immigration, but provides insufficient funds for the agencies to carry out their mandates. The Executive must then make decisions about how to prioritize those mandates. Neither DAPA nor the expanded DACA class confers anything other than the eligibility for certain persons to apply for time limited deferral from removal. With deferred action, under a different set of pre-existing regulations, passed under earlier Congresses and presidents, comes eligibility for work authorization.
While the states concede that the Secretary of Homeland Security has unreviewable discretion to set immigration enforcement priorities (as they must, given the holding in Arizona v. U.S., they argue that the Executive has attempted to exceed the bounds of this authority and “effectively rewrite the laws.” Their initial challenge yielded an injunction of DACA/DAPA, in place now for more than one and a half years.
The states’ initial arguments set forth in their briefs focused on what they referred to as the “legal presence” created by the Executive Action. The government’s position is that a grant of deferred action, utilized many times under many presidents, does not and has never conferred any type of lawful immigration status, enforceable legal rights, or an ability to remain permanently in the United States.
The states further object to eligibility for employment authorization. This provision, however, is automatic for people who receive deferred action, and is found in Congress’ own 1986 Immigration Reform and Control Act (IRCA).
The government argues that the Executive has long been recognized to have the discretion to grant a temporary, time-limited reprieve from deportation to undocumented non-citizens in order to focus limited enforcement resources on higher priority targets. There are many historical antecedents, under both Republican and Democratic administrations, most notably, the “Family Fairness” policy (IRCA) implemented by Presidents Ronald Reagan and George H. W. Bush. Because IRCA provided a path to legal status for undocumented immigrants who had been continuously present in the United States since January 1, 1982. IRCA excluded spouses and children who did not independently qualify, prompting harsh criticism, the Reagan administration announced a blanket deferral of deportation for children under eighteen who were living in a two-parent household with both parents legalizing, or living with a single parent who was legalizing. The W. Bush administration expanded this program in 1990 to cover all ineligible spouses and children under eighteen of legalizing family members, assuming they met certain criteria. Since the late 1990s, numerous administrations have authorized additional categories of people as eligible for deferred action, each with the ability to apply for employment authorization: certain victims of domestic violence under the Violence Against Women Act (VAWA, President Clinton); victims of human trafficking and their family members (T visas, President Bush), victims of certain other crimes and their family members (U visas, President Bush), foreign students affected by Hurricane Katrina (President W. Bush); etc. Without employment authorization, such individuals would have no lawful way to support themselves and their families, would be at great risk of exploitation by unscrupulous employers, and would create an underclass of impoverished residents antithetical to public policy articulated in earlier Supreme Court decisions such as Brown v. Board of Education and Plyler v. Doe.
Although Texas’s challenge resulted in an injunction of the program for almost two years, at oral arguments the case before the Supreme Court began with the question of whether Texas even has standing to challenge the Executive Action. Texas contends that they charge a mere $24 for a driver’s license, which costs them $200 to process. Were DACA/DAPA eligible persons to apply for driver’s licenses, they argue, states “would lose millions.” If Texas’ argument has merit, it might have standing to challenge the executive action; if not, the holding of Arizona v. U.S., acknowledging the plenary power of the federal government in the area of immigration, would likely serve and binding precedent.
Justice Ginsberg asked the first series of questions, getting right to the standing issue. But Chief Justice Roberts, joined by Justice Alito, asked the Solicitor General to explain how the states, were they hypothetically to refuse to issue driver’s licenses, would not then be in a legal bind, describing the driver’s license expenditures as “the whole point” of the lawsuit.
Justice Kagan tried to steer the discussion to the substantive issue of preemption, receiving some support from Justices Sotomayor and Breyer. Even if Texas had standing, the case would be pre-empted if Arizona v. U.S. were to apply. Justice Breyer tried to press this further, wondering aloud what would happen were states to refuse to enforce the federal minimum wage, for example. There is some irony in the federalism issues this case is generating. Central to the determination of whether the states have standing in this case is the holding in Massachusetts v. EPA, in which states were deemed to have standing to challenge the EPA’s refusal, under the Bush administration, to carry out its duties. Justice Breyer also resurrected two cases from the 1920’s in which the court rejected taxpayer standing, tacitly acknowledging the argument by one of the lawyers defending DACA/DAPA that Texas similarly “just didn’t like” the President’s actions, but that not liking a policy is insufficient to confer standing.
After the standing issues were explored, generating what might be a possible 4-4 split on standing, unless Justice Kennedy joins Ginsberg, Kagan, Sotomayor and Breyer, the court turned to the substantive issue of whether in issuing this Executive Action the President was merely exercising his prosecutorial discretion or was creating new law. On this issue, Justice Kennedy at one point expressed skepticism that the President has the authority to exercise this type of discretion without Congressional approval. Later, however, he appeared to challenge the state’s use of injunctive relief rather than objecting under the Administrative Procedure Act. Justice Ginsberg also pointed out the fact that since there are an estimated 11 million persons in the US without status, for whom Congress has not appropriated funds necessary to deport, the executive has no choice but to set priorities to determine who to seek out and deport. This is, in fact, the argument that was used by all prior administrations similarly creating deferred action programs.
Justices Roberts and Alito focused almost wholly on what they observed as the “tough” argument that someone not lawfully present but whose deportation is deferred, should also be permitted to work. The lawyers for Texas pressed what they perceived as their advantage here and called the granting of work authorization akin to granting “lawful status,” not deferred action. Justice Kagan was quick to remind all that the work authorization provisions did not come from DACA/DAPA, but from earlier regulations adopted under earlier executive and congressional regimes, and never amended by Congress, which has failed fourteen times to pass immigration reform.
The court could find that the states have no standing to challenge the executive action, in which case the injunction will be immediately lifted; it could find that the states do have standing, but that their substantive arguments are insufficient to overcome the holding of Arizona v U.S. affirming the plenary power of the federal government over immigration; or it could find that the Executive exceeded his authority and must either amend the executive action or quash it. As has often been the case, whether or not DACA/DAPA lives on and is implemented, or dies at the Supreme Court, quite possibly resides with Justice Kennedy who expressed both sympathy for and frustration with the arguments set forth by both parties.