U.S. v. Texas Immigration Case May Be Resolved on Narrow Procedural Grounds; Long-Term Future Shifts to Next Administration

The Supreme Court’s ruling in a pivotal immigration case that has exposed significant differences in views over the limits of presidential power will likely hinge on narrow technical grounds rather the merits of the Obama administration’s contested immigration policy.

As unauthorized immigrants, their champions, and opponents thronged outside the Supreme Court on April 18, focused on how the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program could affect millions of lives, and as pundits and political prognosticators analyzed the case’s political stakes, the justices were engaged in a far more legalistic debate.

The palpably intense oral argument in the case, U.S. v. Texas, focused chiefly on two issues: the standing of Texas and 25 other states to legally challenge the executive actions announced by President Obama in November 2014 and the meaning of the term “lawfully present.”

While the eight justices appeared evenly split, at least based on their questioning, it is difficult to predict how the court—which has been short one justice since the February death of Antonin Scalia—will ultimately rule. Regardless of the legal outcome, it is increasingly clear that the future of the DAPA program will be mostly shaped by the next occupant of the White House, whether Republican or Democrat.

What the Oral Argument Tells Us

The highly watched case is one of the most significant for the Supreme Court this term. It drew more than 40 amicus briefs filed by a cross-section of interests, including immigrant advocates, mayors, law enforcement officials, legislators, academics, and former government officials. In an unprecedented move, the Republican-majority U.S. House of Representatives voted to submit a brief on behalf the entire House in support of Texas.

In another unusual development, the Supreme Court extended the oral argument beyond its traditional 60 minutes, allocating 15 minutes to an attorney representing the House and a similar amount to a lawyer advocating on behalf of several unauthorized immigrant mothers who could apply for DAPA.

At issue are DAPA and related expansion of the existing Deferred Action for Childhood Arrivals (DACA) program, which collectively could offer temporary relief from deportation and eligibility for work authorization to as many as 4 million unauthorized immigrants. After President Obama announced the programs in November 2014, Texas and 25 states quickly filed a legal challenge. The programs were blocked by a federal judge in Texas who issued a nationwide injunction in February 2015, later affirmed by the 5^th U.S. Circuit Court of Appeals, leading the administration to challenge the injunction before the Supreme Court.

The Issue of Standing

To establish standing in federal court, plaintiffs must demonstrate that the action or law being challenged has or will cause them direct injury or harm. In U.S. v. Texas, the state argues that DAPA and the DACA expansion will inflict financial harm by forcing Texas to spend millions of dollars to issue driver’s licenses to DAPA recipients. Under Texas law, residents with deferred action are eligible to apply for a driver’s license.

Standing dominated significant portions of the court’s discussion, with all seven justices who posed questions touching upon the issue. Responding to Solicitor General Donald Verrilli’s argument that Texas could avoid additional expense by opting not to offer driver’s licenses to DAPA recipients, Chief Justice John Roberts countered that Texas would be sued on equal protection or preemption grounds if it exercised that option. This catch-22 establishes standing, Roberts seemed to suggest. Unless there is a clear, lawful way for Texas to change its policy to avoid the additional driver’s’ license costs, Justice Samuel Alito later added, “I don't see how there is not injury in fact.”

Justice Stephen Breyer raised an alternate question on the standing issue—one unrelated to immigration, but important to the institutional interests of the Supreme Court: When is it appropriate for state governments to sue the federal government over policy disagreements. Should Texas be granted standing, Breyer cautioned, “Every case of political disagreement where states disagree would come before the court.” The long-term consequence, he added, is that “before we know it, power will be transferred from the President and the Congress, where power belongs, to a group of unelected judges.”

The Meaning of Lawful Presence

Beyond the question of whether Texas had the standing to challenge the administration over its executive actions, the justices paid particular focus to the use of the words “lawful presence.” The term, specific to immigration law, means that a person has been authorized by the Department of Homeland Security (DHS) to be in the United States, even if he or she does not have legal status. While it is implicit under federal regulations that recipients of deferred action are lawfully present, the DHS November 2014 memo outlining the DAPA program explicitly states that recipients have lawful presence.

The memo’s inclusion of the term generated a great deal of attention in the courtroom. Roberts expressed an element of incredulity at how the administration could reconcile its stance that deferred action recipients are “lawfully present” while also claiming they are “present in violation of the law.”

“That must have been a hard sentence to write,” Roberts told Verrilli.

The term is important because being lawfully present in the United States entitles an individual to a number of public benefits under federal law, including certain Social Security and Medicare benefits. By extension, the term is used in many state laws and policies to determine eligibility for various state benefits programs. Thus, the downstream effects of federal policy on states and their budgets are a key part of the controversy in the case.

“That lawful presence phrase is key, because that’s the first time in a deferred action program the Executive has taken that position,” Texas Solicitor General Scott Keller told the court.

Verrilli conceded the term had “caused a terrible amount of confusion in this case.” While defending its meaning in the context of immigration law, he said: “If the court thinks it’s a problem and wants to put a red pencil through it, it’s totally fine.”

Exceeding Presidential Authority?

Beyond the discussion over the term lawful presence, the arguments focused on other aspects of the merits of the Texas challenge: Whether President Obama exceeded his presidential authority in establishing DAPA and expanding the original DACA program, which as of March 31 had provided relief from deportation to slightly more than 713,000 unauthorized immigrants brought to the United States as children. On this question, there was broad consensus among the justices and the litigants that the executive branch has significant discretion to set immigration enforcement priorities and to refrain from removing individuals deemed a low priority for deportation. As Justice Sonia Sotomayor noted, there are an estimated 11 million unauthorized immigrants living in the United States, yet Congress provides funding to deport only about 400,000 annually.

Texas even conceded that it would be lawful for the federal government to give such people “low-priority” identification cards as a protection against deportation. While the Obama administration argues that is precisely what DAPA is aimed at, Texas asserts that the deferred action program goes far beyond protecting low-priority individuals from deportation, and that by asserting a conveyance of lawful presence with DAPA it is “affirmatively granting a status” that entails new privileges to “live, work, and receive benefits” in the United States.

One of these privileges, and a key point of contention in U.S. v. Texas, is work authorization. Under federal regulation, certain categories of noncitizens living in the United States may be eligible for work authorization, including recipients of Temporary Protected Status (TPS), adjustment of status applicants, asylum applicants, students, and deferred action beneficiaries. While the administration contends that Congress in 1986 gave the executive branch statutory authority to grant work permission to individuals with deferred action, Texas argues that granting this benefit to potentially millions of unauthorized immigrants goes against Congress’s intent and is a violation of presidential authority.

On the merits, as Justice Kennedy suggested, U.S. v. Texas is ultimately and more broadly about “the limits of discretion.” The administration had a difficult time establishing during the argument that there was a direct precedent for the DAPA program, both in terms of the numbers it would benefit, and in terms of granting relief from deportation to a population in the United States illegally and with no clear path to legal status in the future.

The Future of DAPA Shifts to the Next Administration

While the administration and the state of Texas and its coplaintiffs each could find some measure of comfort from the justices’ questioning, it would be unwise to predict the outcome, particularly with the unusual dynamics that have resulted for a court that has been evenly split ideologically since Scalia’s death. A ruling in the case is expected by the end of June, when the court term ends. While the administration is hoping for a victory to establish President Obama’s legacy on immigration, the program’s longer-term fortunes will inevitably fall into the hands of the next administration.

If a majority of the eight justices conclude that Texas has standing, DAPA implementation will not go forward, and the ruling could determine the legality of similar programs in the future. Should the court split 4-4—either on the question of standing or on the merits of the DAPA program—the 5^th Circuit ruling will stand, and the DAPA and expanded DACA programs will remain under a nationwide injunction. A split decision creates no precedent for future cases. However, in either of these scenarios, the Obama administration is highly unlikely to press forward on a revised deportation protection initiative with only six months left in office. The next administration could, if it so desired, revive the program with a new directive that accommodates the Supreme Court findings. For example, deferred action could be offered to a smaller category of unauthorized immigrants, or with a narrower set of benefits. Clearly, this scenario would only apply in the event either Hillary Clinton or Bernie Sanders wins the White House, as Republican candidates Donald Trump, Ted Cruz, and John Kasich have all voiced opposition to the DAPA and expanded DACA programs.

If a majority rules that Texas lacks standing, the lawsuit will be dismissed. Theoretically, a different party could challenge the DAPA and expanded DACA programs in court, but it is difficult to see who could successfully assert standing to bring a legal action. Thus, if the injunction is lifted, the administration would be free to move forward with implementing the deferred action programs.

The administration would face significant difficulty scaling up such a major program quickly, making it unlikely that DAPA will come to full fruition in the final months of the Obama presidency. DHS, which has been prevented from doing any implementation planning during the court injunction, would have only six months to gear up for the program, including finalizing regulations and guidelines, hiring staff, assembling an adjudication structure, conducting outreach to immigrant communities, and coordinating with NGOs. Since Congress had made clear that it will not provide funding, the DAPA program would have to be financed by fees generated from applicants. During an election cycle in which all of the remaining Republican presidential candidates have pledged to end the Obama deferred action programs and the two Democrats have expressed support for expanding them, would-be applicants might feel a strong incentive to hold off on applying until the winner of the November election is known.

Should the Republicans take the White House, the DAPA program would all but certainly be rescinded come 2017, and few unauthorized immigrants would see any benefit in applying this year. In the event of a Democratic victory, it seems clear that the DAPA and expanded DACA programs would only reach full stride under the next administration.

• Transcript of the Supreme Court oral argument in U.S. v. Texas
• Briefs and amicus briefs filed in U.S. v. Texas

National Policy Beat in Brief

H-1B Visa Cap for fiscal 2017 Reached in Five Days. On April 7, U.S. Citizenship and Immigration Services (USCIS) announced it had received enough visa petitions to reach the annual statutory cap of 85,000 H-1B visas (65,000 plus 20,000 for nonimmigrants with U.S. master’s degrees) within five days of first accepting petitions on April 1. In response to the cap being reached, the government on April 13 used a computer-generated lottery system to select the 65,000 visas under the general-category cap and the 20,000 visas under the advanced degree cap to be considered for adjudication. This is the fourth consecutive year that demand for H-1B visas outstripped supply within the first week that applications were accepted. The H-1B visa program enables U.S. employers to sponsor high-skilled foreign nationals such as scientists, software developers, and engineers to work in the United States for a temporary period.

• NBC News article on the cap being reached
• USCIS press release on completion of the H-1B cap random-selection process

EB-5 Visa Program under Scrutiny. The EB-5 visa program—which gives foreign nationals eligibility for a green card in exchange for investing at least $500,000 in a job-creating project—has drawn criticism after being misused by developers in California, South Dakota, Washington, and Illinois. Most recently, the Securities and Exchange Commission (SEC) filed civil fraud charges against developers of the Jay Peak ski resort in Vermont, who are accused of misappropriating more than $175 million from foreign investors, for personal and other uses. Critics argue the EB-5 program fast-tracks wealthy foreigners through the immigration system and lacks government oversight. Advocates say the program is a successful jobs creator, with lobbying group Invest in the USA claiming the program has created nearly 30,000 jobs between 2010 and 2013. The controversial program, which has drawn significant congressional scrutiny, is set to expire in the fall, and national security concerns raised in recent months have cast a new cloud over its future. Proposed legislation aimed at extending the EB-5 program would require background checks for all parties involved in an EB-5 investment project, and would designate funds towards an oversight system through the Department of Homeland Security.

• Boston Globe article on the EB-5 visa program and instances of misuse
• Associated Press article on the charges filed by South Dakota for EB-5 visa program misuse

Department of Homeland Security Cracks Down On Student Visa Fraud. On April 5, 21 people were arrested as the result of a DHS sting operation to ensnare people involved in student visa fraud. DHS created a fake university, the University of Northern New Jersey, and posed as university officials to identify and target brokers who recruited more than 1,000 immigrants, primarily from India and China, for visas to a nonexistent university. The brokers allegedly involved in the fraud, almost all of them naturalized citizens or legal permanent residents, were the ones arrested. The scheme would have allowed those enrolled in the fake university, already living in the United States under legal visas, to extend their visas and stay in the country. The students are scheduled to appear in immigration court, and ultimately could have their visas revoked.

• New York Times article on the DHS sting operation

The Affordable Care Act at the One-Year Mark. Slightly more than 1 million of the 8.7 million people who became insured during the first full year of the Affordable Care Act were noncitizens, according to a New York Times analysis of data from 2014 enrollment. Hispanics represented the largest share of any racial or ethnic group insured through the new law, and made up 60 percent of newly insured noncitizens. More than 15 million previously uninsured people have gained health coverage since the implementation of the Affordable Care Act. Unauthorized immigrants are ineligible for enrollment.

• New York Times analysis of the Affordable Care Act in its first year
• U.S. Department of Health & Human Services (DHH) fact sheet on the Affordable Care Act

State and Local Policy Beat in Brief

Nebraska Opens up Professional Licenses to DACA recipients. The Nebraska Legislature on April 20 overrode Governor Pete Ricketts’ veto of a measure that would allow unauthorized immigrants who are recipients of the Deferred Action for Childhood Arrivals (DACA) program to work in at least 170 professions that require state licenses. The override clears the way for DACA recipients to permit professional licensing for DACA recipients in professional fields such as health care and education, among others. As of March 30, USCIS reported that it had approved DACA applications for 3,111 Nebraska residents.

• Lincoln Journal Star article on the bill passing in the Nebraska Senate
• ABC News article on the Nebraska Senate’s override of Governor Ricketts’ veto
• USCIS data on DACA applications received and approved by state as of March 30, 2016