Messy. Immigration policy is always messy. This case is messy. Obama’s order did not legalize anyone, but deferred deportation for a small fraction of immigrants here illegally. It is estimated that it applied to 400,000 of the 11 million illegal immigrants. The question is whether President Obama has this authority. The Obama administration is on the defensive because the Texas court says he doesn’t have this authority and this caused a temporary halt to the program. A future president could rescind this order.
Illegal immigrants who qualify get the all important green card, with alien registration numbers, just like permanent residents. So, opponents of the order argue that this simply promotes illegal immigration to this country. However, new arrivals or anyone coming after 2010 are excluded from this order. Many will not qualify because of a lack of documentation showing that they were here in 2010.
The outcome could go 4-4, 5-3 or even 6-2, with Roberts and Kennedy joining with the liberals. But, many observers seem to go for the 4-4 verdict, which is a win for the states suing the government and an end Obama’s executive action.
The case will be decided in June. The best analysis of the issues comes from scotusblog.com as follows:
Obama’s executive order included the words “lawfully present” for people here illegally. It was argued by the Solicitor General the executive order might work equally well without these 2 words. But, attorneys supporting Texas, insisted the order allowed people to be lawfully present, whether it was explicitly stated or by the rights created by the order.
I guess the SC has the option of striking down the entire order because it is simple contradiction of the legal status of these immigrants, and beyond the authority of the President to change.
But, the executive branch has the obligation to carry out the laws passed by Congress- not enact laws to their own liking. So, this is the basis for Justice Kennedy’s comment that the executive order turns policy making upside-down. This comment coming from Justice Kennedy gives experts the feeling of a 4-4 decision with Justice Kennedy siding with conservatives. Thus, the argument that Obama’s executive order runs counter to the wishes of Congress is strong.
Another problem is whether Texas can show grounds for bringing the lawsuit, based on the financial harm of having to provide driver licences to all the “legally present” immigrants. There was extensive discussion on this point. Texas has a law in place permitting driver licences to those in the “deferred status” category, so they would be financially burden unless they changed their laws in which case they could not sue the government. Chief Justice Roberts aptly called this a Catch-22.
Liberals seemed more receptive to the argument that the realities of the immigration policy, 11 million illegal immigrants, and funds be sufficient to deport a fraction of these immigrants, so prioritization is within the right of the executive branch. The Solicitor General Donald Verrilli opened with this observation, but Justice Sotomayor brought it up again during questioning.
The case will likely be a critical one, as this order is seen as an expansion of the authority of the president particularly among Republicans. It is seen as a pragmatic solution to a Congress deadlocked on immigration reform among Democrats. An Executive Order is not a law, but a temporary measure- but once immigrants get their deferred status, I honestly can’t see any future president wanting to rescind this order.