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Countdown: With Oral Arguments A Week Out, Think Progress Analysis Highlights High Stakes in U.S. v. TX

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On April 18th, the Supreme Court will hear oral arguments in theU.S. v Texas immigration case that will decide the fate of the expanded Deferred Action for Childhood Arrivals (DACA+) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) immigration executive action policies. A week before arguments are scheduled to begin, Think Progress’ Ian Milhiser offers an important reminder of what’s at stake in the case and the widespread implications the decision will have for thousands of immigrant families impacted by the President’s programs.

The full piece, “Everything You Need To Know About The Supreme Court Challenge To Obama’s Immigration Policies” is available online here and follows below:

Brownsville, Texas, is nowhere near the state capital in Austin. To get there one needs to take a five hour trip down the interstate to the southern-most tip of Texas. Go any further, and you are in Mexico. And yet the Texas Attorney General’s office opted to file their complaint in a major immigration case far away from their Austin office in the town of Brownsville.

It’s not hard to guess why. On the day their case was filed, just one active judge, Judge Andrew Hanen, sat in Brownsville. Hanen has a history of using his opinions to criticize the nation’s immigration policies as insufficiently harsh — he once accused the federal government of engaging in a “dangerous course of action” because it permitted an undocumented mother to be reunited with her child without facing criminal charges. Not long after Texas filed its case, Hanen handed down a sweeping, nationwide order blocking Obama administration policies that potentially offered relief to nearly 5 million undocumented immigrants.

Then, in a stroke of extraordinary good luck for Texas and the coalition of states that joined this lawsuit, two especially conservative appeals court judges were twice assigned to three-judge panels reviewing Hanen’s orders. As a result, immigration policies President Obama announced in November of 2014 never actually took effect. They’ve lived nearly their entire lives subject to court orders handed down by some of the most conservative judges in the country.

Next Monday, however, Texas will need to make its arguments to one more Court — the recently diminished Supreme Court of the United States. Moreover, two of the Court’s conservatives, Chief Justice John Roberts and Justice Anthony Kennedy, have already indicated that they may be sympathetic to the Obama administration’s arguments in defense of its immigration policies.

United States v. Texas concerns the legality of two closely related immigration policies. Together, the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”) and an expansion of the Deferred Action for Childhood Arrivals program (“DACA”), are expected to allow about 4.9 million undocumented immigrants to temporarily work and remain in the country.

If you listen to many of DAPA’s opponents, however, you will probably think that this case is also about whether or not Obama has unilateral authority to impose his tyrannical rule on an unwilling nation. President Obama “chose to implement his policy preferences by the extra-constitutional assertion of a unilateral executive power,” according to a brief filed by a few dozen Senate Republicans. A SCOTUSBlog post by law professor and conservative activist John Eastman has the arresting title “Barack Obama is not king.”

Yet, despite such rhetoric, and despite the fact that the fate of millions of individuals is at stake in this case, the doctrinal stakes in Texas are far smaller than they originally appear.

On the surface, the most important question in this case appears to be whether the executive branch has the power to permit millions of people to remain in the country without seeking additional authority from Congress. As it turns out, however, that question has a very easy answer.

As the Supreme Court explained in its 2012 opinion in Arizona v. United States, “a principal feature of the removal system [used to remove immigrants from the country] is the broad discretion exercised by immigration officials.” Indeed, executive branch officials “as an initial matter, must decide whether it makes sense to pursue removal at all.”

The Court’s opinion in Arizona — which was authored by Kennedy and joined by Roberts — seems to anticipate many of the concerns that animated the DAPA and expanded DACA programs. “Discretion in the enforcement of immigration law embraces immediate human concerns,” Kennedy wrote. “Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.”

As a practical matter, the Obama administration could not remove every undocumented immigrant in the country even if they wanted to. As a Justice Department memo explains, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources “to remove fewer than 400,000 such aliens each year.” Thus, the executive branch must, by necessity, prioritize certain cases for removal and ignore other immigrants who remain in the country without authorization. If Congress wanted the executive to round up all undocumented people in the United States, it would have signaled that intention by appropriating enough money to permit the executive to do so.

DAPA beneficiaries live under a Sword of Damocles, knowing that their ability to remain in the country can be stripped from them in an instant.

Texas, for what it’s worth, concedes all of this. In its brief to the justices, Texas emphasizes that it does not challenge a separate document accompanying the memo announcing DAPA. That document instructs immigration officials to focus their efforts on undocumented individuals who are national security threats, who endanger the “public safety,” who have committed crimes, and other, similar categories of individuals — and to remove other undocumented persons only in unusual circumstances.

Additionally, in one of the brief’s most surprising concessions, Texas does not even challenge the executive’s power to notify DAPA beneficiaries that they’ve been afforded relief from deportation and to give them tangible evidence of this grant of mercy. The injunction Texas sought in the lower courts, the state emphasizes, “does not require the Executive to remove anyone, and it does not touch the removal prioritization memorandum. The Executive has been free all along to issue ‘low-priority’ identification cards to aliens.”

The real issues in this case turn of two entirely separate disagreements, one abstract and philosophical, and the other much more real, between Texas and the federal government.

The DAPA memo, Texas complains, “affirmatively grants lawful presence to aliens who would otherwise be unlawfully present.” It’s a complaint that, at times, appears more theological than physical. Undocumented immigrants, the state seems to complain, are lawbreakers. And the Obama administration claims the power to ontologically transform them into beings cleansed of this sin.

This apparently claim, that the administration has fundamentally altered the status of DAPA beneficiaries, is misleading. As the Justice Department explains in its own brief, there are mechanisms under the law that do effectively cleanse undocumented immigrants of whatever legal taint they carry for remaining in the country without authorization. “Aliens who receive cancellation of removal or otherwise become lawful permanent residents are no longer removable.” The DAPA memo, by contrast, “does not create a new lawful status; it involves an exercise of discretion to forbear from enforcement against an alien who remains removable.” The Department of Homeland Security “has absolute discretion to revoke deferred action unilaterally, without notice or process.”

DAPA beneficiaries live under a Sword of Damocles, knowing that their ability to remain in the country can be stripped from them in an instant.

Yet, while deferred action is both temporary and tenuous, Texas correctly notes that it offers very real benefits beyond the mere ability to continue living in the United States. DAPA beneficiaries are authorized to work in the United States, and they receive certain collateral benefits such as the ability to receive Social Security and Medicare if they otherwise qualify (notably, like nearly all workers, they will also pay taxes to support both of these federal programs).

Texas’ primary grievance, in other words, isn’t with the administration’s decision not to deport millions of immigrants. It isn’t even with the administration’s decision to notify these individuals that they are on the list of immigrants deemed a low priority for removal. The state’s primary grievance is that DAPA beneficiaries receive other benefits such as work authorization.

Congress explicitly authorized the executive to offer immigrants many of the benefits Texas now complains about.

The problem with this argument, however, is that federal law explicitly contemplates that DAPA beneficiaries — like other persons granted “deferred action” — may receive additional benefits beyond the ability to remain in the country. Federal regulations promulgated by the Reagan administration in 1981, for example, list “an alien who has been granted deferred action” as one of many kinds of immigrants who may “apply for employment authorization” from the federal government. Though a 1986 law enacted a “comprehensive scheme prohibiting the employment of illegal aliens in the United States,” that law contains an explicit exemption for non-citizens “authorized to be so employed . . . by the Attorney General.” Subsequent legislation transferred this power to grant work authorization to the Secretary of Homeland Security, who issued the DAPA memo.

Similarly, while federal law normally provides that “an alien who is not a qualified alien . . . is not eligible for any Federal public benefit,” the same law allows Social Security and Medicare benefits to be paid “to an alien who is lawfully present in the United States as determined by the Attorney General” (once again, subsequent legislation transferred this power to the Secretary of Homeland Security).

Thus, the question whether the executive branch may permit undocumented immigrants to live and work in the United States isn’t particularly difficult. This is hardly a case where President Obama has declared himself king and seized powers never contemplated by Congress. To the contrary, Congress explicitly authorized the executive to offer immigrants many of the benefits Texas now complains about.

It should be noted, however, that there are some preliminary issues that could complicate the Supreme Court’s ability to decide this case. As a general rule, for example, federal courts are not allowed to hear lawsuits unless the plaintiff has actually been injured in some way by the defendant — a requirement known as “standing.” Judge Hanen determined that Texas has standing because it chooses to issue drivers licenses to DAPA beneficiaries, and doing so costs the state money. But it is far from clear that this is sufficient grounds for standing. As the Justice Department argues in its brief, “Texas has voluntarily chosen to subsidize those driver’s licenses, and it could eliminate that subsidy at any time. There is no precedent in our Nation’s history for adjudicating the merits of a challenge to the federal government’s enforcement policy choices on such a self-generated basis.”

Additionally, there is a question about whether the administration was required to jump through additional procedural hoops before launching the DAPA program — an issue that could delay, but not ultimately bar, DAPA from going into effect so long as the White House is occupied by a president determined to implement this program.

Should the Supreme Court reach the merits, however, the Justice Department has mustered very strong arguments for its side. Despite widespread rhetoric labeling DAPA as a case about executive tyranny, the reality is much more benign. Texas concedes that the Obama administration has the authority to do much of what it plans to do with DAPA, and Congress explicitly authorized the most contentious parts of the program that Texas does actually challenge.