The Supreme Court Justices Are in a Jam on Immigration

Oral arguments in an immigration case foreshadow a big mess.

Pro-immigration protesters at the Supreme Court Monday<a href="https://www.dropbox.com/sh/f8moxwey0zidrag/AADY8ZMbFEwqj1JQIIf61P49a?dl=0&preview=fight-for-families-rally-21.jpg">Courtesy FWD.us

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


When the Supreme Court hears oral arguments in a critical case, the justices often provide hints in their questions about how they might rule. But after Monday’s arguments in United States v. Texas, a challenge by 26 states to President Barack Obama’s executive action on immigration, the only thing that seemed clear was that the court was in a massive bind, having been asked to settle a contentious political question that it was not keen to address.

There were few, if any, hints—and this probably doesn’t bode well for the president’s attempt to bring 4 million immigrants out of the shadows and allow them a foothold into the legal employment market. The questions from the justices showed a marked lack of consensus on all the key issues at play. And if the court ends up deadlocked with a 4-4 vote, the 5th Circuit Court of Appeals’ ruling against the administration will stand, and Obama’s immigration action will be eviscerated.

The case stems from a lawsuit filed in December 2014, a month after the Obama administration ordered immigration officials to defer the deportation of millions of law-abiding immigrants who had come to the country illegally but had children who were US citizens or legal permanent residents. The action, which was blocked by the lower court before it could be implemented, wouldn’t grant any immigrants legal status, but it would permit many of them to apply for legal work authorizations and the ability to participate in the Social Security system.

The state of Texas took the lead in challenging the order, and the principal hurdle for it has to do with standing. Texas must demonstrate that Obama’s policy actually harms the state. Texas argues that its injury is the result of the cost of providing subsidized driver’s licenses to immigrants. The state already provides such licenses to other, undocumented immigrants covered under previous deferral actions, but because of specific wording in Obama’s executive action, it would likely be required to extend the subsidy to the additional immigrants covered by the new policy. If it chose not to provide these licenses, it could face discrimination lawsuits. But Texas’ policy of subsidizing undocumented driver’s licenses is a voluntary one—it’s not mandated by the federal government. The state could just as easily decide to end this practice rather than pay for the extra licenses that might be necessary if Obama’s immigration policy were implemented. That’s why the administration argues Texas’ alleged injury is largely self-inflicted.

Much of Monday’s arguments revolved around this issue of standing. All eyes were on Chief Justice John Roberts Jr., who could serve as the swing vote in the case, given his skepticism toward claims of standing in earlier cases. Roberts argued in 2007 in Massachusetts v. EPA that Massachusetts had no standing in bringing a suit against the Environmental Protection Agency over greenhouse gas regulations, but his colleagues disagreed.

On Monday, though, he didn’t seem inclined to apply such scrutiny to Texas. Roberts quoted a comment Obama had made in 2012, when the president announced an expansion of deferred deportation rules that applied to children but said he didn’t think a president had the authority to make such a move for their parents. As Roberts pointed out, Obama at that time said that if he issued an order covering parents here illegally, “I would be ignoring the law in a way that I think would be very difficult to defend legally.” During the arguments, Roberts asked Solicitor General Donald Verrilli, “What was he talking about?” Verrilli responded that Obama had gotten another opinion and changed his mind.

Justice Samuel Alito, who in the past has resisted imposing limits on presidential power during Republican administrations, also indicated on Monday that he believed Texas had the right to bring the case. He instead spent much of his questioning fretting that Obama’s action may have given illegal immigrants new powers to file discrimination cases against their employers or potential employers.

Justice Sonia Sotomayor, the court’s only Latina justice* who is almost certain to back the Obama administration in this case, challenged the validity of the huge costs Texas claimed it would incur if Obama’s immigration order took effect. “Do we just accept at face value something that might—might not be true?” she asked, citing allegations that Texas had “made up” its numbers. She posited that perhaps Texas could simply let people stand in line longer at the DMV rather than expend more money to pay for the extra licenses. 

The case poses a dilemma for the justices. If they grant Texas standing, they could face a tsunami of lawsuits from states any time a federal action might force a state to spend tax dollars. Verrilli told the justices that granting standing could do exactly what the country’s founders wanted to avoid: shift tremendous political power into the hands of a few unelected judges. None of the justices seem likely to want to be in the business of arbitrating political questions that become gridlocked in Washington.

It’s not just Republican-controlled states that could bring suits in this scenario. California looms large over the case. It could push hard for more progressive environmental regulation. Walter Dellinger, a law professor at Duke University and former White House counsel under President Bill Clinton, wrote in an amicus brief in the case that giving Texas standing “would not only inject the Court into this political maelstrom, but also the next one, and the next…[I]t would open wide a back door to federal court for States seeking resolution of a host of politically charged disputes.”

Roberts didn’t seem inclined to question Texas’ standing to bring the case. But if he wants to avoid opening these floodgates, he has a choice: hold his nose once again and side with the Obama administration, or find a way to thread the needle and settle the case without making a bigger mess than the one Congress has already left.

Correction: An earlier version of this article incorrectly stated that Sotomayor was a “child of immigrants.” Her parents were from Puerto Rico and thus US citizens.

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate