— -- The Supreme Court began hearing arguments today on the legality of President Obama’s immigration executive action, which would grant “deferred action” -- essentially temporary relief from deportation -- to millions of undocumented immigrants, primarily the parents of U.S. citizens and lawful permanent residents.
In court this morning, the Justices appeared divided on the question of whether Texas and 25 other states have the right to bring this case at all. Justices Breyer, Sotomayor, Ginsburg and Kagan seemed skeptical of Texas’ argument that the new initiative would cause them financial hardship, in the form of driver's licenses it issues and subsidizes under state law.
"I’m focusing on the narrow question of how Texas is hurt, specifically, and not a political disagreement," Justice Breyer said, adding, "How are they specifically hurt by giving these people driver's licenses?”
The conservative justices, meanwhile, seemed skeptical of the administration’s argument that the injury Texas claimed was self-imposed, since it could change its driver's license law at any time.
“Their argument is, we're going to give driver's licenses to people subject to deferred action. And you're saying, okay, that's your injury?," Chief Justice Roberts asked. "You can take that away. And I just think that's a real catch-22. ... [If they did that] you would sue them instantly ... and if you don’t, the interveners will sue them.”
“I don’t see how there is not injury in fact here,” Justice Alito said flatly.
The justices appeared equally divided on merits, with the liberal justices suggesting that the administration had the authority to undertake an initiative like this.
Meanwhile, the conservatives pressed the Solicitor General and the attorney representing the interests of undocumented immigrants for several "Jane Does," undocumented mothers who would be eligible for deferred action if the policy were to go into effect. Chief Justice Roberts asked if they could "grant deferred action to every unlawfully present alien in the United States right now.” The Solicitor General said he could not, but that this action was a far more limited one.
Chief Justice Roberts and Justice Alito questioned the meaning of “lawful presence,” the phrase the administration used in its memo announcing the policy. Opponents of the executive action say the phrase is important because it gives immigrants more rights than federal statutes allow.
Justice Anthony Kennedy, often seen as the Supreme Court's swing vote, questioned the scope of presidential discretion.
“What we’re doing is defining the limits of discretion and it seems to me that is a legislative, not an executive act,” he said, continuing, "It's as if ... the president is setting the policy and the Congress is executing it. That's just upside down.”
Justice Kagan and the court’s more liberal justices argued the phrase “lawfully present” didn’t expand federal laws for immigrants. Justice Kagan said the federal government still has the right to deport at any time. She described the effect of the policy as "you will not be deported unless we change our minds."
In an important exchange with Texas Solicitor General Scott Keller, Justice Kagan extracted a concession that the state of Texas’s main objection wasn’t to the label “deferred action” or even “lawfully present,” so much as the consequences of that status, primarily the ability to seek work authorization.
Kagan suggested perhaps Texas brought the wrong suit -- it challenged the executive action creating this deferred action, when it should have separately challenged the regulation that gives deferred action recipients the ability to work legally. Justice Kennedy later followed up on that question, asking Erin Murphy, who represented the House of Representatives, whether the appropriate challenge might not have been a claim brought under the Administrative Procedure Act -- a question he’d previously posed to another Solicitor General.
Kennedy’s apparent receptivity to these arguments may represent one possible path to avoiding a 4-4 tie.