When it comes to Supreme Court oral arguments, sometimes the justices’ questions feel more like answers with a question mark at the end. At oral argument in United States v. Texas, the questions asked by Chief Justice John Roberts and Justice Anthony Kennedy, the likely key votes in the case, seemed like real questions. Fortunately for proponents of the administration’s immigration executive action—which could prevent, on a temporary basis, millions of undocumented immigrants from being deported—the lawyers for the administration had good answers, and the lawyers on the other side didn’t. When it comes time for the justices to cast their votes in the case, they should do what the law requires and reject this challenge to the administration’s immigration initiatives.
There are many different legal issues raised by this challenge to the Obama administration’s executive action (Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA). But at bottom, the basic legal question at the heart of the case is a simple one: Is the administration’s decision to defer, on a case-by-case basis, the removal of certain parents of U.S. citizens or lawful permanent residents lawful? The answer to that question is just as simple: The administration’s action is lawful because Congress has consistently and repeatedly conferred substantial discretion on the executive branch to determine how best to implement the nation’s immigration laws. The executive action at issue is just the latest example of presidents exercising that discretion. The practice of granting deferred action to certain categories of individuals who present a low priority for removal is one that has been consistently used by presidents of both parties and endorsed by Congress on a bipartisan basis.
At oral argument, Justice Kennedy expressed some concern about this point, noting that “the briefs go on for pages to the effect that the president has admitted a certain number of people and then Congress approves it. That seems to me to have it backwards. It’s as if … the president is setting the policy and the Congress is executing it. That’s just upside down.” That might be “upside down,” but importantly, that’s not what happened here. To the contrary, Congress has consistently set our nation’s immigration policy and, as part of that policy, has conferred specific and substantial discretion on the executive branch to determine how best to implement it. As a bipartisan group of former members of Congress explained in an amicus brief filed with the Court, Congress has chosen to do this precisely because, as the Supreme Court itself has recognized, immigration law is a field in which “flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.”
Consider, for example, the Immigration and Nationality Act, in which Congress authorized the secretary of homeland security to “establish such regulations; … issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the statute. And consider the Homeland Security Act of 2002, in which Congress directed the secretary to establish “national immigration enforcement policies and priorities.” In these provisions of law, Congress specifically conferred on the executive branch the authority to do exactly what it did here. It established “national immigration enforcement policies and priorities”—that is, it determined that parents of U.S. citizens and lawful permanent residents who have been in the country for a significant period of time and have not engaged in any criminal activity are low priorities for removal. And it “perform[ed] such other acts” as are “necessary” for carrying out its authority to enforce the immigration laws—that is, establishing a deferred action program for those individuals who are a low priority for removal.
Importantly, as U.S. Solicitor General Donald Verrilli acknowledged at oral argument, this does not mean that there is no limit on the executive branch’s authority when it comes to removal—a point that was of interest to both Chief Justice Roberts and Justice Kennedy. “Under your argument, could the president grant deferred removal to every unlawful—unlawfully present alien in the United States right now?” Roberts asked. Kennedy noted that the Court needed to “defin[e] the limits of discretion.” But the Supreme Court does not need to decide the precise limits of that authority here. Indeed, all the Court needs to do is decide whether this exercise of executive authority is within the “limits of [the executive’s] discretion.” And given the nature of this program (for example, the close connection between potential deferred action recipients and U.S. citizens and lawful permanent residents) and the surrounding circumstances (for example, the fact that Congress has not appropriated nearly enough funds to remove all undocumented individuals from the country), there’s no doubt that it is.
Tellingly, as Roberts noted at one point, Texas does not meaningfully dispute that it is entirely within the executive’s authority to grant deferred action to a class of individuals. In one of the most significant exchanges at oral argument, Justice Elena Kagan pressed Texas Solicitor General Scott Keller to be clear about the nature of his argument. Keller agreed that “given that they are removing 400,000 people a year, … [the administration] could do forbearance from removal” on a class basis. In response to a question from Justice Ruth Bader Ginsburg, he went even further and said (as Texas also said in its brief) that the government could give identification cards to individuals that would identify them as low priorities for removal.
At oral argument, Texas made clear that the primary thrust of its argument is that the government violates the law by “granting lawful presence” and work authorization and other benefits. But as the discussion before the Court made clear, both arguments are total red herrings. As Solicitor General Verrilli explained at length, the immigration executive action confers no broad new immigration status on anyone. In fact, Verrilli told the Court that “if the Court thinks it’s a problem and wants to put a red pencil through [the reference to lawful presence in the directives], it’s totally … fine.”
Moreover, as Verrilli also explained, the fact that deferred action recipients are eligible for work authorization derives not from the Obama administration’s immigration initiatives, but from preexisting regulations that date back to the Reagan administration. The existence of those regulations provides no reason to strike down the Obama administration’s deferred action program, which is concededly within its authority. Toward the end of oral argument, Justice Kennedy asked whether “the appropriate way for Texas to [have] proceed[ed] [would] have been to challenge the [work authorization] regulation under” a different statute.
That question may have been one of the most significant asked at oral argument because it may signal that at least some of the justices are interested in finding a way to avoid resolving all of the issues raised at oral argument. For example, the Court might conclude that the Obama executive action is entirely consistent with the nation’s immigration laws, and that Texas did not properly challenge the preexisting regulations that permit deferred action recipients to apply for work authorization and other benefits.
Or the Court may not even reach the merits of this case at all. After all, the justices spent a significant amount of time discussing whether Texas and the other states even have standing to bring this case. And as I’ve previously written, there’s good reason to think that Chief Justice Roberts should not find standing here given his prior votes in standing cases. While Roberts pressed Verrilli on his argument that Texas’s injury is one of its own making, he also asked whether “the injury here [is] any more indirect and speculative than the injury in Massachusetts against EPA,” a case in which he notably concluded that there was no standing.
Moreover, Verrilli received virtually no resistance to his argument that Texas and the other states have failed to establish standing because they cannot demonstrate that any action by the courts will redress their alleged injury. According to the United States, the primary injury Texas alleges is the cost of subsidizing drivers’ licenses, but Texas gives drivers’ licenses to aliens on the basis of deferred action itself. Thus, the government argues, because Texas no longer challenges the deferred action program itself, the Court can do nothing to redress the state’s alleged injury.
There were a lot of tough questions asked of both sides at oral argument this morning, but only one side had good answers. While those answers may not tell us exactly where the Court will land, they do tell us where it should land. When the Court announces its decision later this year, that decision should, at long last, unfreeze DAPA.