This column by ACRU Policy Board Member Hans von Spakovsky was published April 19, 2016 by Conservative Review.

On a warm spring Monday in the nation’s capital, the future of American immigration policy and the limits on executive power were argued before the U.S. Supreme Court. The lawsuit was filed by 26 states (led by Texas) against President Barack Obama’s administrative amnesty program, and based on the questions asked by the justices, this case may very likely come down to a four-to-four split vote.

The states filed suit in December 2014 after President Obama announced his “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) program in November. It would grant “lawful presence” — the meaning of which was fiercely argued in the courtroom — to between four and five million illegal aliens. That number raised a laugh in the courtroom when in answer to a question about a prior case, U.S. Solicitor General Donald Verrilli said the older case was “a million miles from where we are now.” To which Justice Kennedy commented, “Well, it’s four million people from where we are now.”

DAPA would not only allow illegal aliens to remain in the country indefinitely with no fear of deportation, but Obama’s program would also give them “Employment Authorization Documents” or work permits. Granting “lawful presence” would also make such aliens eligible to receive social security retirement and disability benefits, as well as health insurance under Medicare. Additionally, the government never disputed a lower court finding that the aliens would become eligible for earned-income tax credits and entitled to numerous state benefits such as unemployment insurance and driver’s licenses.

The Obama administration lost this case in the lower courts; a federal district court in Texas granted the states a preliminary injunction that stopped DAPA from being implemented. This was upheld by a three-judge panel of the Fifth Circuit Court of Appeals. The government then appealed the preliminary injunction to the Supreme Court, arguing that the states did not have standing to bring this lawsuit; that the courts do not have the power to review the president’s actions; and in any event, Obama acted within his authority as president.

The damages claimed by the states are all of the costs they incur due to increased law enforcement, public education, and health care as a result of having large numbers of illegal aliens placed in their states by the federal government. In particular, Texas claimed it would suffer the damages incurred by its program of subsidizing driver’s licenses fees, since state law provides a driver’s license to anyone who has authorization from the federal government showing they are “lawfully present.”

This fact caused quite a tussle between General Verrilli and Chief Justice John Roberts, as well as Justices Anthony Kennedy and Samuel Alito. The government has taken the position that Texas’s injuries are self-inflicted, since the state could change the law to not give driver’s license to DAPA beneficiaries. But as Chief Justice Roberts said to Verrilli, if Texas changed the law “and did not confer — offer driver’s licenses to those who are lawfully present because of your policy… you would sue them, wouldn’t you?” Verrilli tried to deflect having to answer that question by saying “it would depend on what they did.” Kennedy and Alito also honed in on this point.

Verrilli avoided giving a straight answer. That is because he did not want to admit what anyone who knows anything about the Civil Rights Division of DOJ knows — if Texas tried to do that, they would immediately be sued by DOJ claiming the state was discriminating against immigrants. So Verrilli was arguing that Texas could remediate its damages when surely he knows his own department would sue the state if it tried to do that — it seems he just didn’t want to admit that to the Court.

Thomas Saenz, who had divided argument time with the solicitor general, and who represents several illegal aliens who intervened in the lawsuit, made no bones about it. In answer to the same question from the Chief Justice, he said it would be illegal for Texas to deny licenses to those aliens with lawful presence and “would be subject to challenge.” Chief Justice Roberts remarked on what a “catch-22” the government was presenting: if Texas was injured by the DAPA program, it had standing; but it did not have standing because it could change its policy.

Verrilli also had to do some fast talking when the Chief asked him whether, under the claim the government was making that the DAPA program was fully within the president’s authority, “could the President grant deferred removal to every unlawfully present alien in the United States right now?” Verrilli stumbled several times trying to answer this; at one point he said there were “administrative” limits. But as the Chief pointed out, by administrative limits Verrilli meant limits imposed by the Executive Branch on itself and yet the DAPA program had never “been approved by the Executive branch prior to this point, either, and yet it’s a fairly significant departure.” In other words, a supposed “limit” imposed on the president by the president is not a limit at all.

The heart of the government’s case was reminiscent of Bill Clinton’s infamous “It depends on what your definition of ‘is’ is” line. The Chief asked Verrilli how the government could say in its brief that, citing the DAPA program guidance, “the individuals covered are lawfully present in the United States.” And yet less than a page later, the government says, “Aliens with deferred action are present in violation of the law.” “That must have been a hard sentence to write,” said Chief Justice Roberts, “I mean, they’re lawfully present, and yet, they’re present in violation of the law.”

Verrilli answered, “I actually had no trouble writing it.” Verrilli then argued with a straight face that being “lawfully present” doesn’t mean that you are legally present, just “tolerated.” Justice Samuel Alito would not let this go, asking Verrilli how it was “possible to lawfully work in the United States without lawfully being in the United States?” Verrilli postured that the states’ reading of federal immigration law was wrong and that there was no conflict between these two positions. But Alito said he was “talking about the English language” and that “I just don’t understand it.”

Scott Keller, the solicitor general of Texas, argued the case for the states. He did a very good job laying out the problems with the government’s legal theories, calling DAPA “unprecedented, unlawful, and the biggest change in immigration law ever.” He pointed out that what the president had done was far outside his statutory authority in federal immigration law; in fact, Congress in 1986 and 1996 passed amendments to severely restrict which aliens could receive work permits and other benefits: “What the Executive is trying to do here is flout that determination.” And he added, the government is trying to convince the Court to “take out ‘lawful presence’ from the DAPA memo and pretend ‘lawful presence’ isn’t in there.”

Finally, Erin Murphy argued on behalf of the U.S. House of Representatives, which had filed an amicus brief supporting the states. Her main point was that the president had come to Congress three years ago asking it to “enact legislation that would have given it the power to authorize” most illegal aliens to “stay, work, and receive benefits.” Congress declined to give the president that power, and now “the Executive comes before this Court with the extraordinary claim that it has had the power to achieve the same.” There is “plainly no statutory authority” for the president to grant lawful presence, work permits, and government benefi
ts to illegal aliens under the DAPA program.

It seemed pretty clear from the questioning that none of the liberal justices on the Court saw a problem with the president’s actions. Justice Clarence Thomas did not ask any questions, but the government was sharply questioned by Roberts, Kennedy, and Alito. If there is a tie vote in the case, then the government will lose — the lower court decisions granting the preliminary injunction will stay in place, effectively ending Obama’s DAPA program given the little remaining time in his presidency.