It's that time of year when the SCOTUS is awash in oral arguments that will lead to the seminal opinions of this term. So it was yesterday at the High Court in Washington, D.C. for argument in the case of United States v Texas, posing an important immigration policy question that tests the very limits of executive branch power.

This case presented an evenly divided Court -down one justice following Justice Scalia's sudden death in February- with the task of passing muster on President Obama's innovative immigration policy; a series of recent executive directives made through the Department of Homeland Security known as Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).

The objective of DAPA is to provide favorable prosecutorial discretion for otherwise illegal immigrants that satisfy certain express criteria [such as verifiable employment, and having a young adult child that is a citizen of the United States], granting such individuals a limited period of time during which they are deemed to be "lawfully present" in the United States. The term "lawfully present" is at the center of the dispute.

Here are the legal mechanics of the issue, as stated by the SCOTUSBlog:

(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.

We here at the Law Blogger define the issue as: whether the President or Congress should decide who, among the more than 10-million illegal immigrants in the US, gets to stay in-country, and for how long, despite no legal right to do so.

Texas and 25 other states challenged Obama's executive acts relative to DAPA and successfully had the executive acts enjoined by a federal judge in Texas; the injunction was affirmed by the Fifth Circuit Court of Appeals.

The Solicitor General of the United States asserted that President Obama had the constitutional authority to establish priorities for enforcement of the federal immigration laws. Further, the United States argued that Texas, not being harmed by DAPA, lacked standing under the constitution to even bring the suit to federal court.

Texas, on behalf of itself and many other states that joined the suit, asserted that it would suffer significant administrative costs [i.e. providing drivers licenses and other government services] devoted to a group of people who are in the country illegally.

Chief Justice John Roberts, active during the extended oral argument, was skeptical of the federal government's position, giving rise to speculation that he would not likely join the block of 4 liberal justices. Without five justices signing onto a "majority" opinion, the ruling will lack authority as precedent and the Fifth Circuit's injunction of the federal directives will remain in place for the balance of President Obama's term in office.

President Obama's legacy aside, there are countless lives and families in the balance, along with our national security. This case presents a complicated mess, to be sure.

We will be watching for the SCOTUS opinion on this case so stay tuned.

Post #536

www.clarkstonlegal.com
info@clarkstonlegal.com