Three major questions emerged during Monday's Supreme Court arguments on President Obama's immigration program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA): 1. Do the 26 GOP-led states have standing to bring the case (i.e. would they suffer real injury if the programs were implemented); 2. Does Obama have the authority to provide deportation relief for millions of immigrants; and 3. Do Obama's actions really bestow a legal status on the undocumented?
The standing question in U.S. v. Texas, which we delved into earlier today, became a real hurdle for the Republican-led legal challenge. David Leopold, an immigration attorney and advocate, attended the oral arguments and believes Chief Justice John Roberts left himself an opening to find that the plaintiffs haven't proven sufficient injury to bring the claim—in other words, they lack standing.
"As he has done in other cases, Roberts peppered the Obama administration with tough questions,” Leopold observed, “however, his questioning also left room for the case to be dismissed on standing."
In fact, Leopold was struck by how readily the plaintiffs admitted to having political motivations for having brought the case.
"Republican state leaders and Speaker Paul Ryan's lawyers made it clear they oppose the president's policy on political grounds and don't have a redressable legal claim," he said. "On the merits, they conceded that Obama had the authority to grant reprieves to undocumented parents and Dreamers. As Kagan pointed out, their 'gripe' is letting undocumented people work, which just goes to show the anti-immigrant motive of this case."
The New York Times has a look at some of the tough questions the administration faced regarding the limits of Obama's executive authority.
Justice Anthony M. Kennedy questioned whether the president can defer deportations for millions of people without specific congressional authorization, saying “that is a legislative task, not an executive task.”
“It’s as if the president is defining the policy and the Congress is executing it,” Justice Kennedy said. “That’s just upside down.”
But Kennedy seemed to have his own doubts about whether these particular plaintiffs have standing to challenge the program.
There's also some question about whether Obama's action really confers a legal status on undocumented immigrants who would qualify for the program.
In their Supreme Court briefs, the states acknowledged that the president has wide authority over immigration matters, telling the justices that “the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” Their quarrel, they said, was with what they called a blanket grant of “lawful presence” to millions of immigrants, entitling them to various benefits.
In response, Mr. Verrilli told the justices that “lawful presence” is merely what has always followed from the executive branch’s decision not to deport someone for a given period of time. “Deferred action does not provide these individuals with any lawful status under the immigration laws,” he said. “But it provides some measure of dignity and decent treatment.”
And a little color from the rallies taking place outside the courtroom:
Some members of Susana Sandoval’s group, Dreamer’s Mothers in Action, had come from as far as Michigan — and some of them had fasted all weekend in a show of support of the president’s executive actions.
“This is just a little bit of sacrifice for the four to five million people that will benefit from this,” Ms. Sandoval said.
Groups of young people walked up and down the sidewalk holding banners and chanting mantras like “Sí se puede,” the Spanish version of one of Mr. Obama’s 2008 campaign slogans — “Yes we can.”