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  • Ben Thesing

Awaiting Decision: US v. Texas Tests a Split Court

On Monday, April 18, the Supreme Court heard oral arguments in United States v. Texas; a case that arose from the Fifth Circuit Court of Appeals in New Orleans that concerns President Obama’s executive action on immigration. This momentous case was brought on behalf of several traditionally conservative and Republican states and governors. In November 2014, President Obama drafted and passed immigration reform, bypassing Congress’ consent, and his actions were comprehensive with basic goals such as strengthening border security and more complex goals such as extending the Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents programs.

The states are concerned with these Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. The Department of Homeland Security commenced these programs in 2012, but they have been put on hold due to lower court ruling. These actions would allow an estimated 4.3 million children and parents of U.S. born children in the United States to continue residence. The affected population is so large because it includes "people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010" and "allow[s] parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years." Many have analyzed Obama's actions as a temporary solution to a more permanent problem. With a polarized Congress he acted thusly to coerce the legislature to take action on its own. The President is targeting individuals, who come into the United States legally and simply stay, only to get stuck in what has been dubbed the "shadow world."

Yet, the states did not view his actions in the same light. They view the influx of immigrants in recent history as negatively impacting their economies and placing an undue burden on their public services. Specifically, states detest the fact that the parents of eligible children could qualify for social security retirement benefits, social security disability benefits, or health insurance under Part A of the Medicare Program. The states formally argue that the President does not have the authority to extend DACA and DAPA under his Executive Powers and believe it is strictly the power of Congress and state legislatures to determine who may reside in the U.S. Texas has proven its standing to sue by demonstrating that the state would incur a significant cost by issuing licenses to those who would be extended protection under the President's orders. Texas subsidizes its licenses at an individual cost of over $130.89. Therefore, the state would pay out hundreds of thousands of dollars to fulfill the federal requirement. The lower court also held that Texas fulfilled two other requirements of standing. The U.S. Fifth Circuit of Appeals agreed with the states' argument. In November 2015, they issued their opinion and held that President Obama had overstepped his boundaries in attempting to extend immigration legislation.

The U.S. appealed this decision, and on January 19 the Supreme Court granted the U.S. government certiorari to hear the arguments from both the Solicitor General of the U.S., Donald Verrilli, and the Solicitor General from Texas, Scott Keller as well as other representatives who signed onto the case. The case has received notable attention in terms of the number of amicus curiae briefs filed in support of both sides. Some notable "friends of the court" are Senator Mitch McConnell, who cosigned with 42 other Senators, the Cato Institute, former Homeland Security and Justice Department Officials, and the AFL-CIO. Many question the true impact of these briefs, but they do inform the Justices of the national importance of the case, and the divide it could exacerbate.

Most importantly, with the loss of Justice Antonin Scalia, the Supreme Court is currently in the midst of a contentious political battle surrounding President Obama's nomination of Merrick Garland. While this instance illustrates the political battle over any action the President takes, in technical terms it leaves the Court in a very difficult situation. With their numbers limited at eight for the foreseeable future, a potential tie in US v Texas is more than likely. This outcome would create a presidential effect that not only limits immigration action legally, but dampers President Obama’s and any future president's ability to take similarly sweeping action. One could plausibly conclude this case is a culmination in the frustration of the outcome in the Affordable Care Act case, and the ensuing Tea Party response. Years after what appeared as a revolution, the conservative movement has engrained itself into state and Republican congressional politics. The backlash facing DACA and DAPA is part of the ripple effect created by Tea Partyism. Any U.S. President in the near future will not be able to take action that impacts state functions without the consent of Congress unless she or he would like that action checked socially if not legally. US v. Texas is a culmination of the frustration from the far right, who wholeheartedly believe they are not beholden to federal government action if their elected officials did not vote on an issue, regardless of the powers vested in the President in Article II of the Constitution. Regardless of Texas' monetary loss, the case is representative of much more: if the Court ties 4:4, the 5th Circuit Court's ruling will stand, and the President will have lost power while States will have gained.

Yet, and lastly, the Supreme Court is not an institution that considers merits based on political rhetoric or fallout. The Court will consider whether the states have standing under the Administrative Procedures Act (APA) to challenge DACA and DAPA, whether these acts (a key word that will be debated is "guidance"--Homeland Security formally issued the two programs under that guise) are not in accordance with the law, whether these acts were in accordance with the APA's notice and comment guidelines, and whether the acts violate the Take Care Clause under Article II, Section 3 of the Constitution. The Court heard oral arguments on April 18 and will likely release opinions shortly. Analysts will likely be reviewing the transcripts and audio from the hearings: many quantitative studies contend that justices’ votes can be predicted from simply counting words: justices generally question the party they oppose more than the party they favor. Whatever the predicted and eventual outcome, the case is not good news for Americans who desire compromise and aliens who are seeking stability and prosperity.

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