WASHINGTON (Media General) – “Could the president grant deferred removal to every unlawfully present alien in the United States right now?” Supreme Court Chief Justice John Roberts asked the president’s lawyer before a capacity crowd on Monday.
“Definitely not,” answered U.S. Solicitor General Donald Verrilli.
Roberts’s question was just one in a briar patch of legal thorns faced by both sides in the case titled United States v. Texas.
Following 90 minutes of oral arguments, the Supreme Court now must sort out several issues stemming from President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which tests the high court’s sensibilities on states’ rights, executive overreach and illegal immigration.
Alone, they’re all combustible issues. Combined they’re downright explosive.
In an election year where Donald Trump has tapped into percolating build-the-wall sentiments, the possibility of eight judges permitting millions of illegal immigrants to legally live and work in the U.S. could certainly energize his sizable base.
Oral arguments suggested that the eight sitting justices are fairly evenly split.
Conservative-leaning Justices Roberts, Kennedy, Samuel Alito, and – presumably – Clarance Thomas are disquieted by the president enacting significant changes to the country’s immigration system without the consent of Congress, and appeared satisfied that Texas was justified in bringing its lawsuit.
On the other side, left-leaners Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan lobbed landmines at Texas’ argument that DAPA financially damages the state, and warned that allowing such cases could open all federal programs to a flood of legal attacks by GOP-led states.
Obama executive actions
Mr. Obama’s executive actions on immigration affect up to five million illegal immigrants and were designed to implement pieces of Democrats’ long-favored immigration reform agenda.
With Republicans firmly in control of the House and Senate, Democrats lacked congressional backing for immigration reforms, so the president set out on a last-ditch solo mission.
The primary program in question is DAPA, rolled out in 2014.
The affected immigrant group, which totals in the millions, is “granted temporary legal status and work permits” if they “had been in the U.S. for five years and who have children who are American citizens or lawful permanent residents,” reports NPR. If they pass a background check and prove they paid taxes, “they would be granted legal status and temporary work permits for three years.”
The president’s administration argues that DAPA – and DACA, which applies to children brought into the country illegally – relies on the chief executive’s “prosecutorial discretion” to prioritize certain deportations over others. In keeping, Immigration Services says it will “prioritize deporting felons not families.”
Republicans are quick to counter that DAPA contradicts Mr. Obama’s own words. House Speaker Paul Ryan (R-Wis.) hosts an article on his website titled “22 Times President Obama Said He Couldn’t Ignore or Create His Own Immigration Law” – complete with links to official White House speeches.
States fight back
Texas refused to implement DAPA, contending that its legal residents are manifestly injured by being strong-armed into paying for driver’s licenses issued to undocumented drivers.
The Lone Star State argues that such tactics are illegal.
Texas, joined by 25 other states, fought the government in federal court and found favor with judges at the district and appellate levels.
After a federal district judge issued a nationwide injunction stopping the order, a three-judge panel representing the Fifth Circuit Court of Appeals upheld the injunction in a vote of 2-1, finding, “The states have satisfied the other requirements for a preliminary injunction. They have demonstrated ‘a substantial threat of irreparable injury if the injunction is not issued.’”
With that, U.S. v. Texas was headed for the Supreme Court, which accepted the case while nine justices still occupied the bench.
Three likely outcomes
Supreme Court justices, contemplating constitutional complexities in the quiet confines of their hushed high-ceilinged offices, are known to throw curve-balls in their landmark decisions.
This case could continue the tradition. But, in all likelihood, three outcomes appear most likely.
Deadlock: With only eight justices on the court, following Anton Scalia’s death, the final opinion could very well be a 4-4 tie. This outcome would result in the 5th Circuit’s injunction remaining in place and thus killing DAPA.
Standing: Justices could rule that Texas and other states don’t have the legal “standing” – or, in other words, suffered real injuries – to bring such a case. This option could appeal to Chief Justice Roberts, who is historically partial to “standing” arguments, and has been ever since his days of arguing cases before the high court.
This “standing” outcome would also have the effect of squelching a surge of state-based legal protests, since an “endorsement of that tactic might lead to a flood of state efforts to contest one federal program after another — a prospect that might be unsettling to almost all of the Justices,” writes SCOTUSblog’s Lyle Deniston.
Roberts would certainly have company in the lack-of-standing camp. In Monday’s hearing, Breyer referenced one such case from 1923 and warned, “Old Supreme Court cases never die … They’re submerged like icebergs.”
Formal Rule: A less-discussed but highly plausible alternative opinion could center on the creation of DAPA as a “formal rule,” as reported by Bloomberg. When the government creates formal rules, it invites the public a certain amount of time to add their opinions on the matter – usually to no effect. Just as the court converted Obamacare’s individual mandate became to a “tax,” it could deem DAPA a formal rule.
If the justices find that the public was improperly shut out of the rulemaking process, it “would leave room for the Obama administration — or the next president — to revive it by following the rulemaking procedure,” writes Greg Stohr.
The circularity of the 2016 presidential election and the Supreme Court’s ultimate decision is hard to miss.
Immigration gave rise to passions in the two parties’ bases – Republicans supporting mass deportations and a border wall, and Democrats pushing for stronger amnesty efforts.
SCOTUS is expected to hand down a ruling by late June, with the November elections not far behind.
Follow Chance Seales on Twitter: @ChanceSeales