WASHINGTON—Justices on the Supreme Court were sharply divided on several aspects of President Barack Obama’s executive amnesty, but it’s very likely that the 26 states challenging Obama’s program will prevail, ending the president’s gambit to grant legal status to 4.5 million illegal aliens.
Obama ordered his Department of Homeland Security (DHS) not to deport over one third of the illegal aliens currently in this country, and further to grant them legal status and permits to work in the United States. On November 20, 2014, his administration finalized this program, the Deferred Action for Parents of Americans and Lawful Permanent Residents, which goes under the acronym DAPA.
As Breitbart News has previously reported, there are three issues in this case:
- First, whether DAPA had to go through the public notice-and-comment period required by the Administrative Procedure Act (APA), which is the federal law that governs how federal rules and regulations are made, and would create a paper trail that the government would have to answer for in a court challenge.
- Second, even if DAPA did not have to go through notice-and-comment, whether it is still illegal under the APA because it violates a federal statute, the Immigration and Nationality Act, which is Congress’s law for determining who can enter the United States and stay in this country.
- And third, even if DAPA does not violate the APA or other federal laws, whether it violates the president’s duty under Article II of the Constitution to “take care that the laws be faithfully executed.”
Close to half of the 90-minute argument was spent discussing whether the states had suffered a legally recognized injury that the Supreme Court could remedy, to give the states standing to bring a case in federal court.
U.S. Solicitor General Donald Verrilli told the Court that a state had options to avoid a lawsuit. Instead, a state could disregard DAPA, leaving it to an illegal alien to sue the state for benefits, at which point the state could assert its arguments while defending itself.
Chief Justice John Roberts seemed incredulous at Verrilli’s explanation of a course of action the states could take to avoid a lawsuit with the federal government, saying that if a state pursued that option, “You would sue them instantly.”
Justice Samuel Alito agreed, reasoning, “You’re saying to us that they lack standing because they have an option, but we [the Obama administration] are not going to tell you whether it’s a lawful option.”
As Verrilli continued to argue against the states’ right to sue here, Alito asked, “Suppose the president said, ‘You know, there was a time when we had open borders in the United States, and I think that’s the right policy, so we’re just not going to remove anybody. Who could challenge that?”
When Verrilli responded that such an idea is “a million miles from where we are now,” Justice Anthony Kennedy shot back that under DAPA, “it’s four million people from where we are now,” and then added an opinion that should worry liberals that DAPA’s policy of where to draw the line for government discretion on immigration “is a legislative—not an executive—act.”
Noting that in this case, it seemed that the president had taken the lead in making national policy, and then Congress had supposedly approved it afterward by executing the president’s policy, “That seems to me to have it backwards… That’s just upside down.”
Regarding the merits of the states’ legal challenge, the chief justice noted that DAPA says, “The individuals covered are lawfully present in the United States.” But then less than one page later, the DAPA memorandum adds, “Aliens with deferred action are present in violation of the law.”
Noting the apparent contradiction, Roberts remarked to Verrilli, “That must have been a hard sentence to write.”
Alito followed up with by asking Verrilli, “How is it possible to lawfully work in the United States without lawfully being in the United States?”
In response to that line of questioning, when Verrilli tried to explain how Texas’s reading of the law is incorrect, Alito dismissed the idea that the contradiction of saying a person can legally work in this country while being in the country illegally turns on any technical legal argument, saying, “I’m just talking about the English language. I just don’t understand it.”
When a second lawyer arguing in favor of the amnesty, Thomas Saenz, tried to persuade the justices that this was just a “political dispute” between the elected branches of government that should be left to the political process, Justice Stephen Breyer seemed undecided that the states had not been injured in a way that would give them legal standing to sue, noting that since some states had to grant illegal aliens driver’s licenses at subsidized prices, “one way [DAPA harms those states] is it costs them money.”
Roberts drove that point home, asking, “Isn’t losing money the classic case for standing [to bring a lawsuit]?”
Later, when it was the states’ turn to make their case, Texas Solicitor General Scott Keller began, “DAPA is an unprecedented unlawful assertion of executive power. DAPA would be one of the largest changes in immigration policy in our nation’s history.”
During Keller’s presentation, Justice Elena Kagan asked skeptically regarding illegal aliens that had been here for 25 years, and been otherwise law-abiding, whether Congress or DHS could not decide that those people would not be deported, and could have work permits.
Keller’s answer went to the heart of the lawsuit: “Congress could. DHS does not have statutory authority … to grant [lawful status].”
Keller argued that at a bare minimum, DAPA is not some general guidance policy that is exempt from the normal APA requirements for making federal regulations, but instead is a shocking attempt by a president to seize Congress’s lawmaking power. As such, DAPA had to go through all the requirements of public notice and responding to public comments.
The idea that any president could instead change national policy so significantly that it looks like lawmaking, and do so by a mere stroke of a pen was “unprecedented,” Keller said, “a sweeping assertion. As Justice [Robert] Jackson said in [the famous Youngstown Steel case], ‘It is the duty of the Court to be the last—not first—to give up the separation of powers.”
Keller was followed by Erin Murphy, who is a rising star in Supreme Court litigation circles. A partner at Bancroft, the same law firm that employs the famous Supreme Court lawyer Paul Clement, Murphy was representing the U.S. Congress in this case.
Murphy began her argument by explaining, “Three years ago the Executive asked Congress to enact legislation that would have given it the power to authorize most of the people that are living in this country unlawfully to stay, work, and receive benefits, and Congress declined.”
When Justice Sonia Sotomayor challenged whether DAPA actually changes an alien’s legal status under the law, Murphy responded, “It is a legal status because under the agency’s own regulations, it is a status that has consequences.” She went on to explain that being covered by DAPA does not merely mean that the government is not trying to deport that person, but more than that, such status “triggers the availability of work authorization and eligibility to receive [public] benefits.”
Justice Ruth Bader Ginsburg asserted that since Congress provides enough funds for 400,000 deportations per year, and the executive branch must have discretion to determine which illegal aliens the government will focus on deporting. Consequently, Ginsburg cited Verrilli’s argument that DAPA was a program to exercise such routine discretion by designating some illegal aliens as “low priority.”
Murphy argued that DAPA is much more than that, because, “If all they wanted to do was say we’re not going to enforce [immigration law] as to you, the only memo they would have issued is the Enforcement Priorities Memo [a separate document designating some illegal aliens ‘low priority’], because in order to qualify for DAPA, you have to already not be an enforcement priority.”
But DAPA goes further than that, making the alien “eligible to work and to receive benefits. And the way we do that is by taking this affirmative act of converting you into a status that, under [the government’s] own regulation,” makes the now-legal alien able to work and receive an array of public benefits.
It was unclear from oral argument which way the Court was leaning.
The justices debated whether they might salvage DAPA by striking from it the words “lawful presence,” which Verrilli said were unimportant. But it is far from clear that a majority of the Court was inclined to go in that direction.
Texas Attorney General Ken Paxton was present in the courtroom today, and afterward optimistically told Breitbart News, “I am extremely pleased with our argument today before the Supreme Court. We defended the Constitution with an unprecedented 26-state coalition. The president does not have the power to declare unlawful conduct to be lawful.”
The sudden death of iconic Justice Antonin Scalia leaves the outcome of this case in great doubt. If the justices split 4-4, then the lower court’s decision will be left in place without making any national precedent. Since Texas and the other states prevailed in the U.S. Court of Appeals for the Fifth Circuit, such a tie vote would still result in DAPA’s demise.
The case is United States v. Texas, No. 15-674.
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Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.