Why the Supreme Court will likely #UnfreezeDAPA — i.e. “Don’t Sweat the Headlines”

The U.S. Supreme Court heard oral arguments yesterday in U.S. v. TX, the high-stakes dispute over whether two critical immigration policies announced by the Obama administration in November 2014 can finally be implemented. The policies in question, Deferred Action for Parents of Americans (DAPA) and expansion of the Deferred Action for Childhood Arrivals (DACA+), have been blocked by lower courts in response to a politically motivated lawsuit filed by Republican governors and attorneys general in 26 states. A final ruling by the Court is expected in June.

A few quick reminders about why the stakes are so high in this case. First, and most centrally, the Court’s ruling will directly determine whether nearly 4 million undocumented parents of U.S. citizen kids and legal permanent residents are eligible to request a temporary reprieve from deportation and employment authorization. Some 70% of those parents have lived in the U.S. for more than ten years and 25% of have lived here for at least 20 years. Second, it will determine whether more than 5 million U.S. citizen children can rest easy, albeit temporarily, knowing that their undocumented parent or parents will not be torn away at a moment’s notice. Third, it will determine whether these families can increase their income level by approximately 10 percent, thereby lifting hundreds of thousands of families above the poverty line. And lastly, it will determine whether the United States economy (GDP) is able to grow by an additional cumulative $230 billion over ten years.

Although yesterday’s arguments move the country one step closer to realizing these manifest benefits and reversing the flimsy, ideologically driven rulings of the courts below, you wouldn’t know it from a scan of the post-argument press reports. The media largely concluded that the Justices are likely to deadlock in a 4–4 tie. A sampling of headlines tell the story: “The Court Appears Divided”, “The Supreme Court Looks Poised to Block Obama’s Immigration Actions Indefinitely”, “The Supreme Court Might be Headed for a 4–4 Split”, “On Obama’s Immigration Action, Supreme Court Seems Sharply Divided”.

This conclusion was primed by the prevailing media assumption that the Court will be paralyzed on politically charged or ideologically tinged cases without a tie-breaking 9th Justice. But the analysis is flawed because it exaggerates the significance of the questions raised by the Justices and, more importantly, ignores the weight of the legal arguments presented by the Solicitor General.

Although the media response was unfortunate, it was not surprising. Like most scrums before the Court, the jaggedness of the debate made it difficult to interpret. And nothing dramatic occurred to alter the emerging media consensus that a politically charged case like this will naturally result in an ideological split between the conservative and liberal Justices.

Indeed, pro-DAPA advocates fully expected this cautious post-argument media narrative to emerge. After all, we went through a comparable experience in the similarly momentous Arizona v U.S. (2012) case before prevailing with a 5–3 majority opinion written by Justice Kennedy and joined by Chief Justice Roberts (Justice Kagan recused herself from the case). A couple of examples of the flawed post-argument prognostication we confronted in April 2012:

From the New York Times: Justices Seem Sympathetic to Central Part of Arizona Law (“Chief Justice Roberts said the state law required merely that the federal government be informed of immigration violations and left enforcement decisions to it. “It seems to me that the federal government just doesn’t want to know who is here illegally or not,” he said.”) To Fox News: Supreme Court signals support for Arizona immigration law provision (“You can see it’s not selling very well,” Justice Sonia Sotomayor told Obama administration Solicitor General Donald Verrilli.”)

But those of us who have studied these legal issues and have been fighting to protect these families for years approached yesterday’s argument confident that the federal government would ultimately prevail, regardless of how the oral jousting played out on stage. And none of the ensuing legal drama undermined that confidence because common sense, the law, and extensive historical precedent remain squarely on our side.

The Solicitor General, on behalf of the federal government, effectively argued that: (1) this case should never have made it in to the courts in the first place because the states failed to demonstrate a redressable harm and therefore legal standing to sue; (2) deprioritizing deeply rooted undocumented immigrants (while prioritizing serious criminals and individuals crossing the border) makes eminent sense given the mismatch between congressionally appropriated enforcement resources and targets; (3) the policies are fully consistent with statutory authority to set priorities and regulatory authority to grant deferred action and employment authorization; and (4) these discretionary policies are consistent with both the executive branch’s requirement to take care that the laws are faithfully enforced and with the precedents of numerous administrations for decades.

None of these substantive legal positions was effectively defanged by skeptical Justices or the Texas Solicitor General. To the contrary, many of the arguments emerged stronger from the legal probing (while many of Texas’s were weakened). As in every Supreme Court argument, tough questions were asked, but as Brianne Gorod of the Constitutional Accountability Center points out in her excellent piece:

Fortunately for proponents of the administration’s immigration executive action — which could prevent, on a temporary basis, millions of undocumented immigrants from being deported — the lawyers for the administration had good answers, and the lawyers on the other side didn’t. When it comes time for the justices to cast their votes in the case, they should do what the law requires and reject this challenge to the administration’s immigration initiatives.

In particular, yesterday’s arguments reinforced the federal government’s position that Texas had no basis to file this lawsuit in the first place. The Solicitor General led with and effectively closed with the argument that Texas has not defined an injury that can be redressed by the courts. This issue, which I broke down in an earlier post, became a central topic for the Court today. As I explained:

Texas does not even challenge the government’s authority to grant deferred action to the entire class of DAPA eligible immigrants. In fact, they explicitly concede that authority. What they complain about, and argue are impermissible exercises of executive authority, are the ancillary benefits that accrue from the grant of deferred action: work authorization, lawful presence for certain purposes, and potential eligibility (after 10 years (40 quarters) of lawful employment) for social security benefits.
But as the government points out on page 6 of their brief: “Texas issues licenses to aliens on the basis of deferred action itself. In other words, Texas does not challenge, indeed concedes, the government’s power to grant deferred action to these individuals. And yet, deferred action is precisely the criteria Texas has adopted to establish eligibility for driver’s licenses. These immigrants are authorized under Texas’s policies to apply for driver’s licenses without the work authorization that Texas claims is invalid.
Texas has therefore failed to articulate any connection whatsoever between the injury it claims (additonal driver’s license subsidies) and the policy it is challenging ...”

As the Solicitor General put it in his closing remarks: “On standing, I would note that they have no answer to our redressability point. You didn’t hear one today. They don’t have one.”

In short, this entire case was based on a phantom premise and it is time for the Court to bury this politically motivated lawsuit. For the millions of American families who have waited (and waited, and waited) for the chance to live with dignity and without fear of separation, yesterday was a step toward breaking the shackles of the status quo. (Even if the headlines in your favorite news outlet might suggest otherwise . . . )