WASHINGTON — The state of Texas’ final and most important argument against President Obama’s immigration plan was interrupted just seconds after it began on Monday by one of the more liberal justices on the U.S. Supreme Court.
“How can you say that?” Justice Sonia Sotomayor asked Texas Solicitor General Scott Keller, who said the program, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, is the most far-reaching in history.
The justice pointed to a policy in 1990 that allowed 1.5 million of 4 million undocumented immigrants to remain in the country and work.
“It granted basically the same thing, deferred action and work authorization,” she said. “That was a — 40 percent of the immigrant population of the time was affected.”
The state's arguments before the high court marked the final legal battle over the program Obama announced in 2014 that would shield nearly 5 million undocumented immigrants in the country from deportation proceedings and allow them to apply for a three-year work permit. A decision by the Supreme Court is expected later this year.
Texas sued in 2014 to stop the program, and lower courts have sided with the state three times. Twenty-five states eventually joined the case.
On Monday, the Obama administration’s top attorney, Solicitor General Donald Verrilli, faced his own onslaught of questions from the court’s members who seemed to agree the action was sweeping and that Texas might have a reason to stop the program.
It’s a sign that though both sides seemed confident, the decision an eight-member court is likely to render in June of an election year is unpredictable.
Texas has accused the president of circumventing Congress by acting unilaterally on immigration. The state adds in court documents that it would be “irreparably harmed” by having to pay to process driver’s licenses for the applicants and give them benefits.
Early on, Justice Anthony Kennedy, seen by some program supporters as a key vote to uphold it, said the government appeared to be working backwards, with the president expanding the scope of who is deportable and who isn’t and forcing the legislative branch to act.
“What we're doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive, act,” he said. “That’s just upside down.”
The Obama administration has countered, saying Texas does not have standing to sue the government and that the president isn’t granting people in the country illegally a free pass. Instead, he’s telling immigration agents to use their limited resources to deport criminals and felons, while simultaneously allowing immigrants deemed low-priority to work and stay with their families.
But as he has before with success, Keller said the federal government's own instructions in the memo that announced DAPA tell a different story.
“That lawful presence phrase is key because that's the first time in a deferred-action program the executive has taken that position,” Keller said. “But even if that phrase were struck [from the memo] that would still not cure the defect. And the reason is because what the executive is doing when they're granting deferred action is they are affirmatively granting a status.”
The state has previously cited another case, Massachusetts vs. EPA, where the states were found to have standing because the agency’s actions would have adverse effects on them. In that case, Massachusetts argued the EPA’s policies on emission control and not enforcing some environmental policies were harming its coastline.
Verrilli said that case was different because Congress specifically charged the agency with protecting the states.
Later in the morning, Justice Stephen Breyer hinted that while he understood Texas’ claim that taxpayer money would be used to issue driver’s licenses to Texas’ undocumented DAPA applicants, which court briefs state would be about 500,000, the taxpayer usually loses in those cases.
He cited another case, Massachusetts v. Mellon, to prove his point.
“The point is they lost, because, says the court, we can't let you just sue on the basis that you, as a taxpayer, will have to spend more money,” he said.
At one point, Verrilli said agreeing with Texas’ argument on standing would open the floodgates to litigation on several issues over which the federal government clearly has jurisdiction.
He said Texas has already tested those limits on another case: a lawsuit filed in federal court to stop the government from resettling Syrian refugees in the Lone Star State.
Texas Attorney General Ken Paxton said after the hearing those there is no connection between the two issues.
“It was unrelated to this case,” he said.
He added that lower courts have already agreed three times that Texas presented its the standing claim successfully and said the state did the same thing once more on Monday.
“At every level from the district court to the 5th Circuit, our standing argument was accepted by the court. We think we are suffering irreparable harm, and that’s our argument,” Paxton said.
Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund, who made remarks before the high court in favor of DAPA, said if the standing issue is tossed, the plan would go into immediate effect.
“If they decide there’s no standing, and that’s the basis of the decision, the case is over,” he said.