On Apr 20 2016 by William A. Stock

5 Takeaways From Oral Arguments on Obama’s Immigration Action

On Monday, the U.S. Supreme Court heard oral arguments in United States v. Texas, No. 15-674, an appeal of the U.S. Court of Appeals for the Fifth Circuit's decision to enjoin the centerpiece of President Obama's 2014 executive actions on immigration enforcement. The broader of these two programs, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would make over 30,000 Pennsylvania residents eligible for stays of deportation and work permits for a temporary period of time.

Immediately before applications for the program were to begin, Texas and 25 other states brought suit in federal court in Brownsville, Texas, seeking to enjoin the program. The U.S. District Court for the Southern District of Texas granted the injunction, which was later upheld by the Fifth Circuit. Last fall, the Supreme Court agreed to hear the United States’ petition for certiorari seeking to overturn the injunction.

The Supreme Court asked the parties to address four questions: (1) whether Texas has standing to challenge the president’s immigration executive actions, including the DAPA program; (2) whether the DAPA program is subject to challenge as being “arbitrary and capricious” and in violation of the Immigration and Nationality Act; (3) whether the DAPA program, which was instituted through internal memoranda at the U.S. Department of Homeland Security, needed to go through notice and comment rulemaking; and (4) whether the program violated the take care clause of the Constitution.

The oral argument was closely watched by advocates for both sides of the issue. Here are five takeaways for attorneys in the Delaware Valley about the case.

First, the outcome of this case may be significant for a number of residents of our area. While the largest number of the estimated 11 million residents of the United States who lack lawful status are in California, Texas, New York, Florida and Illinois, there are still significant numbers of prospective DAPA beneficiaries in our area. The Migration Policy Institute released a report that tallied over 30,000 Pennsylvania residents without lawful immigration status who have at least one United States citizen child. For Delaware, the number is about 7,000 but for New Jersey, the number is 133,000. It is important to note that the program would provide a stay of removal for a minority of the undocumented population in our area—just over a third of the undocumented population of Delaware would be eligible, and less than a quarter of the undocumented population of Pennsylvania and New Jersey would be eligible.

Second, the outcome of the case will likely hinge on the question of standing, and oral argument should make proponents of the administration’s actions nervous. While Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer and Ruth Ginsburg took pains to ask questions that allowed the solicitor general to ­support the administration’s position—and attacked the arguments of Texas’s solicitor general—the administration needs either Justice Anthony Kennedy or Justice John Roberts to join those four justices if they want to avoid a tie (which would leave the injunction ­standing). Neither justice asked questions that telegraphed a willingness to find that Texas did not have standing; both were focused on the broader implications of the administration’s grant of a reprieve from deportation to unlawful residents, including their receipt of employment authorization.

Third, the justices don’t even agree on what the president’s action would grant to its recipients, which the parties have made even more ­confusing. During the argument, both the advocates and the justices used “lawful status,” “lawful presence” and even “tolerated presence” to describe the situation applicants would be in after their applications for DAPA were granted. For those of us who practice immigration law, it was painful to hear “deferred action”—defined as permission to remain in this country indefinitely as a matter of prosecutorial grace, accorded no rights to permanent residence—as a “lawful status.” Rather, immigration ­attorneys consider DAPA to be a period of stay authorized by the Department of Homeland Security—a temporary reprieve from removal, revocable at any time but not a “lawful status.”

Fourth, the justices seemed troubled by the lack of a limiting principle to both side’s ­arguments. Roberts and Kennedy peppered the solicitor general with questions about how far the president could go in deferring ­removals—could the president defer all removals, for example? If the president could not defer all removals, what would determine the outer limits of how many removals the president could defer? At the same time, Texas’s lawyers were questioned by the justices about the outer limits of their argument—if the state could obtain an injunction against deferral of some half-million removals in Texas, what about an injunction of a smaller program, say one with 10,000 beneficiaries? If deferral of removal was decided on a case-by-case basis, could Texas obtain an injunction against it? And when Texas conceded it could not, why could the federal government not proceed on a class-based ­determination of low removal priorities?

Fifth, the political and federalism ­dimensions of this case are very significant, particularly when considering the ability of residents of Pennsylvania, New Jersey and Delaware to have their federal policy preferences enacted into law. Texas’ argument in this case is that its policy preferences about what to do with half a million residents who are parents of U.S. citizens should trump the federal authority to regulate immigration. Texas is supported by 25 other states on its position, but 24 states have not joined. If Texas can enjoin this federal program, what will be next? Texas has filed numerous challenges against federal programs in the past seven years, and if they are successful in this case, the state will likely continue to use the courts to try and achieve results it cannot in Congress.

After hearing arguments, the case has been submitted to the court, and now the waiting begins. Thousands of parents of U.S. citizens in our area will eagerly await the court’s decision, which will likely be rendered at the end of its term, likely in the last week of June.

Reprinted with permission from the April 20, 2016 edition of the The Legal Intelligencer© 2016 ALM Media Properties, LLC. All rights reserved.

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