Supreme Court Hears Executive Amnesty Case
On Monday, the Supreme Court heard oral arguments in U.S. v. Texas, the legal challenge to President Barack Obama’s executive amnesty program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. The program would protect more than 4 million illegal immigrants from deportation and authorize them to work and receive benefits.
The program was put on hold by lower courts, which found that it violated the Administrative Procedures Act. The Supreme Court also requested briefing on whether the program violated the constitutional clause requiring the president to “take care” that the laws are faithfully executed.
At oral argument, the justices appeared divided down ideological lines, suggesting that a 4–4 split in the case is likely. If the court does split, the lower court decision blocking the program will remain in place, preventing DAPA from going into effect before the end of President Obama’s term. A final decision is expected in June.
Standing Takes Center Stage
Much of the time during oral arguments focused on the technical legal question of whether Texas, which is representing 25 additional states in the litigation, has standing to challenge DAPA.
In order to have standing to bring a case in federal court, a plaintiff must suffer a concrete injury resulting from the actions of the defendant. Texas law allows immigrants who have received deferred action to obtain a driver’s license, and the state subsidizes the cost of these licenses. Texas argues that it suffers a concrete harm as a result of DAPA, because the program would increase the number of people eligible for driver’s license, forcing the state to incur added costs.
The Obama administration argues that this injury does not create standing because it is “self-inflicted.” Texas voluntarily chose to tie its driver’s license program to federal law and could change its law to avoid the increased costs.
Chief Justice John Roberts questioned the administration’s rationale. He noted that if Texas changed its driver’s license law to exclude DAPA recipients, someone — likely the administration — would challenge such a change. Solicitor General Donald Verrilli agreed that such a change would likely be challenged, but contended that Texas must attempt the change before the courts can consider Texas’ challenge to DAPA.
On the other side, Justice Sonia Sotomayor questioned the wisdom of recognizing standing for Texas in this case, asking Texas Solicitor General Scott Keller whether it would then authorize every state to challenge a federal action any time the action had a financial impact on the state.
If a majority of the court decides to dismiss the case on standing grounds, it would not reach the substantive issues, the injunction on DAPA would be removed, and the program could go forward.
The remainder of the oral arguments focused on whether the DAPA program was within the administration’s legal authority. Much time was spent debating whether DAPA actually changed anyone’s legal status. The administration argued that it simply notified recipients of “tolerated presence.” Texas argued that by granting work authorization and benefit eligibility, DAPA did, in practice, grant legal status.
Liberal justices and Solicitor General Verrilli frequently cited the administration’s justification for the program: Congress has not appropriated enough money to remove every person in the country illegally, therefore, the administration must prioritize removals. Texas Solicitor General Keller granted that while the administration may defer removal of some to prioritize the removal of others, the administration may not grant lawful presence in the U.S. to work and authorize benefits for those whose removal is deferred, as DAPA attempts to do.
Counsel for the House of Representatives was granted 15 minutes at oral arguments as an amicus. She spent much of her time addressing the differences between DAPA and past instances in which presidents granted deferred action. She noted that past deferred action programs that were class-based, like DAPA, granted deferred action to people who had a path to legal status in the country under an existing statutory program. There is no path to legal status for potential DAPA recipients, distinguishing the program from any precedent.