On Monday, the Supreme Court of the United States heard oral arguments in the case of U.S. v Texas– the legal case that has blocked President Obama’s decision to confer protection against deportation and work permits to individuals who are low priority for immigration enforcement. As the Justices prepare to cast their votes in the case, the following is a statement from Frank Sharry, Executive Director of America’s Voice:
When the Republicans first filed their lawsuit against DAPA and DACA+ they trumpeted it as a grand and noble court battle. “This lawsuit is not about immigration” they claimed in their complaint, “It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.”
Turns out, not so much.
In the months that followed the Republicans dodged, weaved and reshaped their case to keep their political attack on DAPA and DACA+ cloaked in legal garb. The case gradually morphed from a constitutional challenge, to a technical administrative rule making claim, to an admission that President Obama was well within his constitutional authority to grant a broad deportation reprieve to undocumented immigrants with strong ties to the U.S. The Republicans’ “real gripe,” they were finally cornered into admitting, was letting DAPA and DACA+ recipients work legally to support themselves and their families.
Never mind that the Republicans know the administration’s immigration enforcement priorities are solidly legal and that Congress, through its appropriations process, has permitted millions undocumented immigrants to stay in the U.S. The GOP thinking appears to be that it’s better to keep undocumented parents and DREAMers toiling in the shadows rather than give them a chance to register, pass background checks, work and pay taxes on the books, and live without fear.
Nevertheless, even after months and months of GOP political posturing and and anti-immigrant rhetoric, it was shocking when Texas Solicitor General Scott Keller reluctantly admitted to the Justices that that the GOP’s opposition was really to work permits, not about deferred action–despite the fact that the work permit law has been on the books for nearly 20 years.
It was also startling when, moments later, Erin Murphy, the attorney sent to the Supreme Court by Republican Speaker Paul Ryan, flat out contradicted Kelly with the confusing (and nonsensical) argument that the President might be able to grant deferred action but couldn’t issue an “enforcement priority card.” Maybe the two lawyers should have walked over to the Supreme Court together Monday morning, gotten their story straight, and stuck to it.
Yet, despite their fumbling and uncoordinated presentation neither GOP lawyer managed to explain to the justices exactly how DAPA and DACA+ directly injures the state of Texas—an essential requirement for standing. In the words of former Texas Governor Rick Perry: “Oops.” Instead, the current Texas Governor, Greg Abbott, who originally filed the blatantly political lawsuit in the courtroom of an anti-immigrant judge, is reduced to accusing Chief Justice John Roberts of “playing politics” and disrespectfully declaringthe Supreme Court “deserves to be swept up into the political process.”
What we’re left with in the aftermath of oral argument before the Supreme Court is this:
- The Republicans conceded that President Obama is well within his authority to issue the DAPA and DACA+ guidance granting undocumented parents and DREAMers a temporary reprieve from deportation;
- The Republicans’ real objection is allowing deferred action recipients the ability to work legally during the reprieve; and
- The work authorization provision the Republicans attack is well settled law which was on the books nearly two decades before President Obama took office.
What the Supreme Court Justices are actually left with is a political dispute thinly disguised as a legal claim.
In his dissent in Massachusetts v EPA, Roberts asserted his long-held views on standing, “The constitutional role of the courts, however, is to decide concrete cases — not to serve as a convenient forum for policy debates.”
Immigration Attorney David Leopold, past president of the American Immigration Lawyers Association, who attended Monday’s argument at the Supreme Court, observed:
Roberts’ questioning during argument was tough, but he never expressed concern that the injury to Texas was direct, which is the requirement for standing. And experience tells us that Justice Kennedy’s seemingly skeptical questions are not an accurate predictor of what he’ll decide in a case. If Chief Justice Roberts truly believes the federal courts should be limited to resolving actual legal cases and controversies and not political disputes than his choice will be an easy one and DAPA and DACA+ will be upheld.
Tomorrow, the justices will hold their conference and cast their votes in U.S. v. Texas. There is good reason to be optimistic, given everything above.
