Court appears divided, signaling trouble for Obama on immigration

The Supreme Court appeared divided during oral arguments Monday in a crucial case challenging the executive actions on immigration President Obama took in 2014.

Justice Anthony Kennedy, who is typically the court's swing voter, seemed to side with Texas and the 25 other states arguing the president overstepped his executive authority in granting deferred deportation to nearly 5 million immigrants.

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Kennedy said the justices were being asked to define the limits of discretion, adding that Obama’s actions seemed more like a legislative act than an executive one.

"It's as if the president is setting the policy and the Congress is executing it," he said. "That’s just upside down."

A 4-4 split by the court, which has shown signs of struggling to decide cases with just eight justices, would leave in place a lower court decision blocking Obama’s actions. The split outcome would virtually guarantee that Obama's programs wouldn't start until after he leaves office, if at all.

The justices spent the majority of the 90-minute arguments Monday grappling with whether Texas has a legal basis to challenge the creation of the Deferred Action for Parents of Americans (DAPA) initiative and the expansion of the Deferred Action for Childhood Arrivals (DACA). Both programs have been on hold since February 2015.

The states claim they would be burdened by having to spend more on public services like healthcare, law enforcement and education if undocumented parents of both American citizens and legal permanent residents are allowed to stay in the country.

Texas, specifically, said it would be hurt by having to issue more drivers licenses, a benefit that’s now subsidized.

“Isn’t losing money the classic case for standing?” Chief Justice John Roberts asked.

Since the administration argued that DAPA does not injure states because it does not require them to do anything, Roberts wanted to know whether it would be illegal for Texas to deny DAPA recipients drivers licenses.

“If they did not offer licenses to those who are lawfully present because of your policy, avoided that injury, you would sue them, wouldn’t you?” he asked Solicitor General Donald Verrilli Jr., who argued on behalf of the administration.

Verrilli said he wasn’t sure if the government would sue since Texas has not changed its law.

“No, because they have what seems to me a perfectly legitimate policy,” Roberts quipped.

Justices Sonia Sotomayor and Elena Kagan questioned why the states aren’t challenging federal regulations that have long granted recipients of deferred action the ability to work and receive public benefits.

“It seems to me that what you should be attacking is not DAPA,” Kagan said. “What you should be attacking is the work authorization regulations DHS [Department of Homeland Security], or before that, the INA [Immigrant and Nationality Act] has had for 30 years,” Kagan told Texas Solicitor General Scott Keller.

But Keller said the states chose to challenge DAPA itself instead of the government regulations.

“That is what is transforming unlawful conduct into authorized lawful conduct,” he said.

Sotomayor jumped on Keller's comments that DAPA is “one of the largest changes in immigration policy in our nation’s history.”

“How can you say that?” she asked. “We have the Fairness Act that happened in 1990. It granted basically the same thing, deferred action and work authorization, to 1.5 million people out of 4 million. Forty percent of the immigrant population of the time was affected. Here, the best estimate is that only 35 percent are affected.”

When Keller corrected Sotomayor and said that only 47,000 people actually got relief, she pointed to congressional action.

“Here, we have a Congress that's decided — some members of the Congress have decided — they don't like it, and so Congress has remained silent,” Sotomayor said. “It doesn't mean that at some later point after the election or whenever, Congress can't step in and do what it wants to do.”

The House of Representatives had 15 minutes Monday to argue that the president’s programs should be struck down.

Erin Murphy, the attorney representing the House, argued the president does not have the power to give immigrants the ability to work in the U.S. If all the administration wanted to do was protect people from being deported, she said, it would have simply issued an enforcement priority memo.

“What the executive wanted to accomplish was something more,” she said. “To say not only are you not an enforcement priority, but we want you to be eligible to work and to receive benefits. And the way that we do that is by taking this affirmative act of converting you into a status that, under our own regulation, changes your eligibility.”

The Supreme Court issued the order giving lawmakers a chance to be heard after the House filed an amicus brief in support of the states. Democrats who disagreed with the Republican-led brief filed a brief of their own in support of the administration but did not get time in court to argue their position.

The case could have a devastating effect on the president’s legacy. Obama vowed when he campaigned in both 2008 and 2012 to push for comprehensive immigration reform but has yet to fulfill those promises.

A 4-4 tie could kill the immigration programs for good. The lower court's temporary injunction would stand while the states seek to permanently block the president's actions. The litigation could then span into the next administration, which may or may not fight to uphold Obama's actions, depending on who the next president is.

White House press secretary Josh Earnest on Monday declined to guess how the justices will decide.

“At this point, I am going to withhold any prognostication on behalf of the administration and reiterate our confidence in the power of the legal arguments” made by administration lawyers, he told reporters.

The high court asked both parties to argue an additional question in their briefs — whether the immigration programs violated the Take Care Clause under Article II of the Constitution, which directs the president to take care that the laws are faithfully executed. That move signaled the justices are determined to settle the case, though the question was never raised during oral arguments.

— Jordan Fabian contributed to this report, which was updated at 3:01 p.m.