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Obama Immigration Program Faces Supreme Court Scrutiny

Crossposted from Education Week's School Law blog

By Mark Walsh


The U.S. Supreme Court on Monday appeared divided on whether Texas could challenge the Obama administration's program offering relief from deportation and work permits to some 4 million unauthorized immigrant parents of U.S. citizen children.

The question of whether Texas and 25 other states have legal "standing" to challenge the Deferred Action for Parents of Americans program dominated the 90 minutes of intense arguments in United States v. Texas (Case No 15-674).

The DAPA program and an expansion of an earlier program aimed at young people hold an array of implications for the nation's schools, parents, and students, as I reported in Education Week last week.

Although the arguments did not get into some of the particulars of school-related issues raised in some of the briefs, the human dimension of the immigration debate did not go unmentioned by the justices.

Justice Sonia Sotomayor suggested the administration had authority to create the DAPA program and "those nearly 11 million [total] unauthorized aliens are here in the shadows" because Congress has "remained silent" on immigration reform.

Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan also expressed support for the administration's views.

Meanwhile, three justices of the court's more conservative bloc expressed varying degrees of sympathy for the states' position, while conservative Justice Clarence Thomas remained silent.

Justice Samuel A. Alito Jr. told U.S. Solicitor General Donald B. Verrilli Jr., who was defending the DAPA program, that Texas doesn't "want to give driver's licenses to the beneficiaries of DAPA. And unless you can tell us that there is some way that they could achieve that, then I don't see how there is not injury in fact."

Justice Anthony M. Kennedy said that when it came to an immigration policy affecting some 4 million people, "what we're doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act."

And Chief Justice John G. Roberts Jr. seemed to suggest that Texas and other states should be able to challenge the program based on increased costs.

"Isn't losing money the classic case for standing?" Roberts said.

In blocking the Obama administration's program, lower courts held that at least Texas had standing because it would incur additional costs for issuing driver's licenses if some 500,000 unauthorized immigrant parents received notice from the federal government under the DAPA program that they were not a priority for deportation. 

Those courts approved an injunction blocking the Obama initiative. The administration thus must win five votes on the eight-member court (with the late Justice Antonin Scalia's seat still vacant) to revive the program.

In its brief, Texas cites not only increased costs it would face to issue driver's licenses to those who gained relief under the DAPA program, but additional education costs of some $58 million per year "stemming from illegal immigration."

"DAPA is an unprecedented assertion of executive power," Texas Solicitor General Scott A. Keller told the justices on Monday. 

There was considerable discussion Monday on what the DAPA program would actually do, given that it builds on other laws and regulations that all sides agree give the executive branch wide discretion on deferring deportation of various classes of non-citizens.

DAPA "does not confer any immigration status," Verrilli said.

Roberts and Alito pointed to what they viewed as inconsistent language in the administration's defense of the program that DAPA recipients may "work lawfully" but not be considered to be here legally.

"I'm just talking about the English language," Alito said.

Verrilli suggested there were fine lines between the meanings of various words and phrases in immigration law, especially the idea of "lawful presence."

A decision in the case is expected by late June.

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