Equity & Diversity

Supreme Court Weighs Deportation Dispute

By Mark Walsh — April 26, 2016 4 min read
Supporters of an Obama administration program seeking to give protection from deportation to unauthorized immigrants whose children are U.S. citizens demonstrate outside the U.S. Supreme Court, which heard oral arguments in a challenge to the program.

The U.S. Supreme Court appears divided over President Barack Obama’s program offering work permits and relief from deportation to some 4 million unauthorized immigrant parents of children who are U.S. citizens.

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) April 18.

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.

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.

“There is a pressing humanitarian concern in avoiding the breakup of families that contain U.S. citizen children,” said U.S. Solicitor General Donald B. Verrilli Jr. in defending the administration’s program.

Justice Sonia Sotomayor said that some 11 million total unauthorized immigrants are “here in the shadows” and are part of the economy, like it or not.

She suggested the administration had the executive authority to create the DAPA program because of congressional inaction on immigration reform.

“Here, we have a Congress that’s decided—some members of the Congress have decided they don’t like [immigration legislation]—and so Congress has remained silent,” Sotomayor said.

Justice Ruth Bader Ginsburg said that Congress was not providing the executive branch all the resources it would take to deport all 11 million undocumented immigrants.

“Inevitably, priorities have to be set,” she said.

Justices Stephen G. Breyer and Elena Kagan also expressed support for the administration’s position.

Costs of Driver’s Licenses, Schools

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 but is expected to lean toward the states, as well.

Justice Samuel A. Alito Jr. expressed support for a lower court’s ruling that at least Texas, among the plaintiffs, had legal standing to challenge the program because it would have to provide driver’s licenses to the DAPA recipients.

In blocking the Obama administration’s program, lower courts held that 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.

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,” presumably from an increase in families with a mix of undocumented members and U.S. citizen children.

“DAPA is an unprecedented assertion of executive power,” Texas Solicitor General Scott A. Keller told the justices.

Verrilli, who was defending the program, faced some sharp questioning from Alito.

Texas doesn’t “want to give driver’s licenses to the beneficiaries of DAPA,” Alito told Verrilli. “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.”

Chief Justice John G. Roberts Jr. suggested 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.

On the merits, Justice Anthony M. Kennedy expressed some support for the states. He 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.”

Because lower courts approved an injunction blocking the initiative, the administration must win five votes on the eight-member court (with the late Justice Antonin Scalia’s seat still vacant) to revive the program.

Considerable discussion took place last week on what the DAPA program would actually do, given that it builds on other federal immigration laws and regulations that all sides agree already give the executive branch wide discretion on deferring deportation of various classes of noncitizens.

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.

A version of this article appeared in the April 27, 2016 edition of Education Week as High Court Weighs Deportation Dispute

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