Unfortunately, Out of State Lawsuit Keeping VA From Reaping the Benefits
This year, the deadline for filing federal income taxes arrives on the same day that the U.S. Supreme Court will hear oral arguments in the U.S. v Texas immigration case. Tax Day is a reminder that for the good of our tax base, our overall economy, and millions of families in Virginia and across America, the Supreme Court should recognize the political motivations underlying the Republican plaintiffs’ case and allow the executive action policies to go forward.
On April 18, the U.S. Supreme Court will hear oral arguments to 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, which would allow certain immigrants with longstanding ties to the United States to register with the government and undergo a criminal background check in order to obtain a legal work permit and temporary reprieve from deportation. Republican Governors and Attorneys General from 26 states have sued to block these policies from implementation. By temporarily blocking the immigration executive action policies, the Republican plaintiffs are not only harming American children and familiesthat have lived and worked in the U.S. for years, but they are also denying their own states millions of dollars in tax revenue and restricting our full economic potential:
- If the Supreme Court unfreezes DACA+ and DAPA, state and local tax coffers will grow by $805 million nationwide, including by $26 million in Virginia.A recent report from the Institute on Taxation and Economic Policy (ITEP) found that if the Supreme Court unfreezes the immigration executive action policies, state and local tax coffers would increase by an additional $805 million each year, including by nearly $26 million in Virginia.
- There is nothing more American than paying taxes. Undocumented immigrants in Virginiaand nationwide are already making a tremendous contribution to our tax base. ITEP’s report found that the 11 million undocumented immigrants currently living in America pay $11.64 billion in state and local taxes each year, including $246 million in Virginia. Undocumented immigrants eligible for DAPA or DACA, specifically, pay $5.3 billion in state and local taxes, including nearly $90 million in Virginia.
- DACA+ and DAPA would grow the national and Virginia economy. Areport from the Center for American Progress estimates that fully implementing the deferred action programs —DACA, DAPA, and expanded DACA— would grow the U.S. economy by $230 billion over the next 10 years. In Virginia alone, the state GDP would grow by $4.19 billion.
Immigrants are already living and contributing to society in numerous ways. Nationwide, according to research from the Center for Migration Studies, more than 90% of DAPA-eligible individuals are parents to at least one U.S. citizen; 81% have lived in the U.S. for 10 years or more; and 94% are employed. It’s time our policies recognize their contributions and the fact that these immigrants just want a chance to register with the government, undergo a background check, apply for a work permit, and yes, pay their taxes.
A political debate, not a legal dispute
Since the beginning, the lawsuit challenging the deferred action policies has been a political case, not a true legal dispute. Republican Governors and Attorneys General from 26 states forum-shopped to file their lawsuit before Judge Andrew Hanen, an outspoken opponent of immigration. The paper trail of Judge Hanen includes multiple opinions that ventured beyond the particulars of the case at hand in order to rail against the government’s immigration policies. In fact, Judge Hanen’s views were sufficiently hardline that notorious “birther” Orly Taitz engaged in similar forum shopping before filing one of her numerous lawsuits before Judge Hanen in 2014.
Judge Hanen gave Republicans exactly the ruling they sought: a nationwide injunction to freeze the policies from going into effect. Hanen’s stay and injunction were then upheld by a 2:1 ruling in the conservative Fifth Circuit Court of Appeals – a ruling that drew further condemnation for its partisan nature. In a sharply worded dissent in the Fifth Circuit, Judge Dineen King stated that, “the policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.” Meanwhile, long-time New York Times Supreme Court reporter and legal analyst Linda Greenhouse rebuked the Fifth Circuit ruling by noting of the majority’s reasoning: “if not for its length at 70 pages, the opinion would fit comfortably as a talking point in a Republican presidential debate.”
The U.S. Court of Appeals for the DC Circuit dismissed a similar case, brought by anti-immigrant Sheriff Joe Arpaio, for lack of standing.
The partisan nature of the challengers’ case extends beyond the judicial arena. In Congress and on the campaign trail, Republicans have been engaged in a relentless assault on immigrants. Every single Republican presidential contender vowed to overturn executive action. And this Congress alone, House Republicans have held eight anti-immigrant votes and recently voted in favor of Speaker of the House Paul Ryan signing the entire U.S. House of Representatives onto an amicus brief in U.S. v Texas. Senate Republicans also joined their House colleagues in filing an amicus brief against the deferred action immigration policies.
However, the names of the Republicans who did not sign on to the Republicans’ Senate and House briefs helps to underscore that the case is all about politics, not the law. Of the five House Republicans who voted against Ryan’s effort, Rep. Carlos Curbelo (FL-26), Rep. Mario Diaz-Balart (FL-25), Rep. Bob Dold (IL-10), and Rep. Ileana Ros-Lehtinen (FL-27) each represent districts with greater than 20% Latino populations (greater than two-thirds in each of the South Florida districts), while Rep. Richard Hanna (NY-22) is retiring at the end of the term. Similarly, the small contingent of Senate Republicans who did not sign on to their chamber’s brief were disproportionately comprised of those running for re-election and/or representing Latino-heavy states. That these political calculations were paramount in deciding who officially signed onto the brief helps underscore the central point – politics, not principle, is driving the Republican lawsuit.
Noting the “epic political nature” of U.S. v Texas, prominent immigration attorney and analyst David Leopold recently highlighted Supreme Court Chief Justice John Roberts’ view of the courts as a place to resolve legal disputes, not political questions. In a 2007 written dissent, Chief Justice Roberts described standing as “a fundamental limitation ensuring that courts function as courts, and not intrude on the politically accountable branches.” As a result, Leopold concluded, Chief Justice Roberts and the rest of the Court should dismiss the challengers’ political lawsuit on grounds of lacking standing.
As New York Times’ Linda Greenhouse noted, “If the justices approach their task as judges and not as politicians, the administration will easily prevail.”
Failing on standing, also wrong on the merits
In addition to failing to clear the standing question due to the political nature of their suit, the Republican plaintiffs are also wrong on the merits of the case:
- President Obama’s deferred action programs are lawful exercises of executive discretion, fitting squarely alongsidethe immigration executive actions that Presidents from both parties have exercised since the mid-20th century. In fact, the strongest historical precedent for DAPA comes from Republican presidents Ronald Reagan and George H.W. Bush. From 1987 to 1990, they implemented a Family Fairness policy that deferred deportation for the spouses and children of people who qualified for legalization under IRCA. At the time, the Bush administration believed that Family Fairness could cover up to 1.5 million people, or 40 percent of the unauthorized population at the time—approximately the same percentage that would be affected by DAPA and expanded DACA.
- As recently as the 2012 caseArizona v. United States, Justice Anthony Kennedy authored a 5-3 majority opinion that reasserted that a “principal feature of the removal system is the broad discretion exercised by immigration officials,” further noting that executive branch’s immigration discretion also included “whether it makes sense to pursue removal at all.”
- Congress hasrepeatedly and explicitly passed laws delegating broad enforcement authority to the executive branch in the immigration context. Congress has also expressly recognized the Secretary’s authority to issue work authorization. Through DAPA and expanded DACA, the Secretary of Homeland Security is simply enforcing these existing laws Congress passed.
- By setting immigration enforcement priorities and adopting policies to focus limited resources on those priorities, the Secretary of Homeland Security is doing what Congress routinely instructs him to do. Homeland Security spending bills routinely direct the Secretary toprioritize the identification and removal of serious criminals.
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