WASHINGTON — The eight-member Supreme Court was closely divided on Monday morning when it heard arguments over several states' challenge to the Obama administration's 2014 immigration executive action known as Deferred Action for Parents of Americans (DAPA).
The policy would grant deferred action — a decision not to seek removal of unauthorized immigrants — to the parents with no criminal record of those who are Americans or have permanent legal status. Along with that, the program provides for work authorization and limited benefits — primarily, Social Security — for those granted deferred action.
The states — joined by the House of Representatives — argue that such a policy runs contrary to existing immigration law and, as such, is an illegal policy.
While the justices appeared split 4-4 on conservative-liberal grounds over whether DAPA itself and its effects are ultimately legal, Justice Anthony Kennedy signaled an openness to dismissing the case on standing grounds — a ruling that this lawsuit was not the proper way to bring such a challenge.
The Obama administration has maintained that the states, led by Texas, lack standing to bring this challenge because the injury Texas claims — costs related to issuance of drivers licenses to those granted deferred action — is speculative. The states and House, however, respond that there has to be a way for courts to review such a significant policy decision if, as they argue, it is an illegal action.
On Monday, the four more liberal justices pressed questions about standing, while also attempting to pin down the two lawyers arguing against the policy — representing the states and the House — on exactly what it was that they believed was impermissible about the administration’s DAPA action.
The liberal justices pinpointed the primary concern raised by the states as the work authorization and provision of limited benefits to those granted deferred action under DAPA. The work authorization in DAPA, however, flows from an existing regulation that allows the government to grant work authorization for certain immigrants.
Justice Anthony Kennedy asked at multiple points whether the proper case wouldn’t instead be one challenging the Obama administration’s application of that earlier regulation. Kennedy suggested that such a lawsuit, brought under the Administrative Procedure Act, could argue that the Obama administration expanded the use of that earlier regulation so much that it, effectively, changed the regulation.
If the states had challenged the DAPA that way, they would have been able to challenge the effects of the executive action while avoiding one of the administration's stated concerns. Solicitor General Donald Verrilli, Jr. argued on Monday that a ruling finding that the states here have standing "would invite a flood of litigation" from states challenging federal actions whenever there is an indirect effect on their budgets.
If the justices are uninterested or unable to reach a majority ruling based on standing, however, Monday's arguments suggested the justices could split 4-4 on the question of whether the Obama administration's DAPA actions, including the work authorization and benefits provision effects, run contrary to current law. Such a ruling would leave the current injunction against the program in effect, with the practical result of dealing a loss to the Obama administration.
On that merits question, Justices Kennedy and Samuel Alito, along with Chief Justice John Roberts, appeared very skeptical of the administration's action. Kennedy at one point said that whole process "seems backwards," with the administration effectively defining the limits of its own discretion.
Although Justice Clarence Thomas didn't speak up at arguments, as is his general practice, he would be expected to side with his conservative colleagues on the matter.