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Latest Voices Assessing the Arguments, Implications, and Stakes of U.S. v Texas Immigration Case

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Ahead of the Supreme Court conference on U.S. v. Texas tomorrow, we present key excerpts from some of the latest analytical pieces:

Tom Jawetz, Vice President for Immigration Policy at the Center for American Progress Action Fund, writes at Medium,  “3 Ways House Republican Leaders Misled the Supreme Court to Score Political, Not Legal, Points”:

“Last month, Republican leadership in the U.S. House of Representatives took the unprecedented step of filing with the U.S. Supreme Court a purely partisan amicus brief that purported to represent the will of the whole House. This, despite the fact that 186 members of the House already were on record as opposing the position that would be expressed in the brief and 186 Democratic and Republican members voted against the resolution authorizing the House to file the brief. The brief was filed in a case, United States v. Texas, involving a challenge by Republican governors and attorneys general from 26 states to two immigration enforcement policies: Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, and expanded Deferred Action for Childhood Arrivals, or expanded DACA. When the lawyer chosen by Speaker Paul Ryan, Erin Murphy, took to the podium on Monday to present the House’s arguments, she advanced three arguments that were misleading and false, and were designed to drive a political narrative rather than a legal one. Here is why they were wrong.

Falsely Equating Deferred Action and Permanent, Lawful Status

…Rewriting History about Presidents Ronald Reagan and George H.W. Bush’s Family Fairness Policy

…Ignoring Decades of Historical Practice and Legal Authority for the Granting of Work Authorization

…From the moment then-Secretary of Homeland Security Janet Napolitano announced the creation of DACA in 2012, House Republicans have been singularly focused on terminating the policy come hell or high water. On multiple occasions they have brought to the Floor bills that would block DACA and/or prevent the 2014 deferred action policies from taking effect and some have threatened to bring the federal government to the brink of complete or partial shutdown to achieve this end.

The brief that they filed with the Supreme Court, and the arguments they presented in Court, can only be understood through that lens. Despite their best efforts to pass legislation to curb the Secretary’s authority to implement these policies, House Republicans have been unable to work their will through Congress. So, like the Republican state-elected officials who took their policy (and political) grievance to the courts for resolution, House Republicans have now thrown their political fight into the judicial arena where it does not belong. If the Court sees it for what it is and decides the case on the law, it will reject the misleading arguments of the House (and the state plaintiffs) and lift the injunction blocking implementation of DAPA and expanded DACA.”

Rep. Luis Gutierrez in Huffington Post, “Immigration Case: Texas Concedes Most Important Points”:

“…We will see what happens, but when I left the court I was more confident than ever that – even with the court not at full strength – this was going to be a lopsided victory for the United States and the President. The crux of the argument that the State of Texas made is that they subsidize driver’s licenses to such an extent that a driver’s license in Texas from their point of view is a kind of welfare. Apparently, people in Texas do not pay full price for the cost of a license.

If the U.S. Department of Homeland Security vets people through a background check and categorizes these long-term residents as the lowest priority for deportation allowing them to stay, then the federal government, following its regular procedures that date back to the 1980s, will issue applicants a work permit for a temporary period of time so they can work legally and support themselves. And if an individual now has a document issued by the federal government allowing them to stay and to work, they can usually apply for a driver’s license. And to the State of Texas, a driver’s license is a form of state-subsidized welfare.

Note, the State of Texas did not argue that President Obama—or any president—lacks the power to grant temporary deferred action to groups of immigrants if each case is adjudicated separately. That’s right; the State of Texas has conceded what we already know: that the President is acting within the laws passed by Congress and the legal boundaries set by the Constitution, just as every President has done in modern times. Instead Texas said that that the federal government is injuring Texas because Texas does not charge full price for driver’s licenses.

So the key points of the oral argument went like this: Um, hey Texas—and I am paraphrasing here—couldn’t you charge more for the licenses? Clearly, immigrants would pay more if that is what was needed to make Texas happy, and having more drivers on the books, buying insurance, and having accountability is much better for everyone than the current system where some immigrants cannot get licenses but drive anyway. Texas said it had not really considered that option.

And, um, hey, Texas—paraphrasing again—couldn’t you just refuse to issue the driver’s licenses? Like Arizona did with DACA for DREAMers in 2012? And Texas is all like, if we refused to issue driver’s licenses to people with deferred action, we would get sued, and in that lawsuit, we might lose just as Arizona did. Which begs the question, why were we here in the first place?

And then it became clear to everyone in the courtroom why Texas, Republican Governors, and Republican Congressmen had chosen this path. They were making a political statement. They felt it was important to call the president lawless and a dictator and they used the Texas driver’s licenses as their excuse.

And if you take a deeper look, Texas is really saying that people can stay and the President has the power to keep families together, but they just can’t drive or work if Texas has its way. Moms and dads would have to work in the underground economy, drive without licenses or insurance, not be fully covered by wage and safety laws, and always be subject to exploitation. That is the world Republicans in Texas envision.

Well, as Doctor King taught us, the arc of the moral universe is long but it bends towards justice, and so it often is when it comes to the American courts. When a judge is selected in Texas to hear a case because he has already denounced this President; and then the case is appealed to the most conservative, least friendly circuit in the nation; and then the case is appealed to the Supreme Court, eventually you get to a venue that looks and thinks and rules much more like America in all her rich diversity and modernism.

Monday, our highest court, led by its women, but likely to include another two or three justices in the majority, took a step towards justice. Now we wait until probably June to hear the outcome. And maybe, just maybe, the Senate will someday do its job and allow the ninth and final Justice to sit on the court.”

Nora A. Preciado, a staff attorney at the National Immigration Law Center, shares her own personal story of how DACA transformed her life and future in a Medium post, “15 Years After Coming to the U.S. Undocumented, I Became a Lawyer. This Week I Was in the Supreme Court”:

“This week, I was fortunate enough to be inside the U.S. Supreme Court for the argument in the U.S. v Texas case challenging the president’s immigration relief initiatives, known as DAPA and the expansion of DACA. While I entered the courthouse as a member of the Supreme Court Bar, having practiced law for 10 years, this scene would’ve seemed but a dream not too long ago.

My parents brought me to Garden Grove, Calif., from Mexico undocumented when I was 13 years old. As a teenager, it was a tough transition being in an unfamiliar place and not knowing a word of English. But with my family’s support — and not without some setbacks — I was able to excel in school and embark in a rewarding career that led me to this surreal point: sitting right in front row, across from Justice Sonia Sotomayor and behind Attorney General Loretta Lynch, two women I deeply admire.

DAPA and the expansion of DACA would provide deportation relief and work authorization to certain young, undocumented people, as well as to certain parents of U.S. citizens and lawful permanent residents.

Being inside the courtroom and watching attorneys expertly make the legal case for the administration’s initiatives, reminded me of the limitations my own immigration status imposed on me when I was growing up. Though I excelled in school and got an associate’s degree from a local community college, I could not transfer to one of the several California universities that accepted me because nonresident tuition was prohibitively expensive for my minimum wage–earning parents, who had three college-age children at the time.

I continued taking classes, obtained a second degree, and volunteered extensively at the community college for four more years, waiting for my immigration status to change. Finally, in 2000, I became a lawful permanent resident and was able to transfer to U.C. Davis to finish my degree, which in turn opened the door for me to attend U.C. Berkeley Law School.

I’ve always wanted to help people, such as my family, who could have avoided so many difficulties and heartache if we only had access to more information and resources — if we only understood the legal system better. Knowing that law is a powerful tool, I became a lawyer 15 years after arriving in the United States.

Monday was a full-circle-moment for me. I watched attorneys argue the law and knew that some of them had in mind the practical, real-life consequences of what was happening in that courtroom. I felt proud to be sitting there with some of the families whose lives will be impacted by this case.

If DAPA and the expansion of DACA are allowed to go into effect, families around the country will no longer have to live in fear of being separated. Not only that, but entire communities will benefit from increased tax revenue and newly authorized workers will no longer be subject to exploitation by unscrupulous employers. Our whole country will reap the moral and financial benefits.

The most unforgettable part of Monday was coming out the front door of that magnificent Supreme Court building, walking down those marble steps alongside many of the amazing people who will benefit from DAPA and expanded DACA, and hearing the thousands of immigrant families outside chanting and clapping. I had to fight back tears as I descended those steps, looked out over that beautiful crowd, and felt its overwhelmingly positive energy.

I do not for a minute forget the sacrifices my family made to come to this country or the many years I spent undocumented and living in fear of being deported. I know how privileged I was to be there Monday and to walk among all those families fighting for the same thing my family wanted: a better life and an opportunity to thrive and give back.”