By Lisa Soronen
It was a different crowd today at the U.S. Supreme Court. The number of children on the courthouse steps may have exceeded the number of adults, and the voices on the microphones were speaking English and Spanish.
United States v. Texas is about different things for different people. For some it is about keeping families together, for others executive overreach, and for about half of the states it is about “standing” to sue the federal government.
The legal issue in this case is whether the president’s Deferred Action for Parents of Americans (DAPA) program, which allows certain undocumented immigrants who have U.S. citizen children to stay and work temporarily in the United States, violates federal law.
Before getting to this question the court has to decide whether any of the 26 states challenging DAPA have “standing” to sue the federal government in the first place. The 5th U.S. Circuit Court of Appeals concluded that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing.
The more conservative justices, led by Chief Justice John Roberts, seemed skeptical of the United States’ argument that states lack standing.
More specifically, Roberts asked Solicitor General Don Verrilli, arguing on behalf of the United States, whether the federal government’s position that if a state doesn’t want to incur the cost of providing DAPA participants a license it could just change its law and stop doing so, is a “Catch-22.” Very likely if a state did so the federal government would sue the state for discrimination.
Justice Elena Kagan led the court’s more liberal justices who were questioning whether the DAPA program exceeds federal immigration law. Both sides agreed, she pointed out, that the federal government could decide not to deport a class of low priority undocumented immigrants, which is part of what DAPA does.
So the problem isn’t with DAPA, she implied, but with the Immigration Reform and Control Act of 1986, which allows some people not lawfully present in the United States to work and receive other benefits. But Texas and the other states in this case sue under DAPA, not the federal immigration law.
Oral argument, and conventional wisdom, indicate that the court may be split 4-4 on both issues in this case. We won’t know for sure—probably—before the end of June.
Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.