Texas Leads Arguments Against Obama Immigration Order

April 20, 2016

WASHINGTON, DC—The Texas Attorney General’s Office presented its case for why an injunction should remain in effect against the Obama Administration’s executive action on immigration before the U.S. Supreme Court on April 18.

During oral arguments in United States v. Texas, Texas State Solicitor General Scott Keller argued Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents should be ruled unlawful, citing a need to defend the Constitution.

“Our lawsuit to stop President Obama’s illegal immigration policy is about a concept as old as the nation’s founding: that one person cannot unilaterally change the law,” Texas Attorney General Ken Paxton said in a statement following oral argument. “Rewriting national immigration law requires the full and careful consideration of Congress, not the political will and assertion of one person.”

Obama’s executive action policy would have allowed about 4 million undocumented immigrants—out of an estimated 11 million undocumented immigrants—who have lived in the U.S. since 2010, who have no criminal record, and have children who are U.S. citizens or lawful permanent residents, to stay in the U.S. and be granted work permits. But Paxton’s office argued the White House doesn’t have the power to create an immigration law without Congress—even during times when Congress fails to act.

“If this blatant power-grab by President Obama is allowed to go unchecked, nothing would stop a future president from issuing an executive order dissolving the rights of gun owners in violation of the Second Amendment, nullifying the religious freedoms guaranteed by the First Amendment, or abolishing any other dearly held rights,” Paxton said.

The Lone Star state said states have a right to challenge the action because they would be financially harmed by the order by issuing driver’s licenses to people illegally in the country.

Paxton’s office was supported in its legal challenge against Obama’s immigration policy by current and former U.S. Attorneys General, governors, U.S. Senators, members of the U.S. House of Representatives and federal court scholars in 25 other Republican-governed states.

U.S. Solicitor General Donald Verrilli represented the Obama administration and questioned whether Texas had the legal standing to challenge the executive action. Chief Justice John Roberts and Justice Samuel Alito “aggressively questioned” Verrilli on the issue of “standing,” according to Lyle Denniston in an analysis on SCOTUS Blog. “Both seemed to have come into the argument inclined to accept that Texas and the other states did have enough at stake that they should have the right to take their grievance to court. But there did not appear to be support for that from any of their colleagues.”

Justice Anthony Kennedy, who many believe could be a swing vote in this case, was not noticeably favorable to the states on the standing argument issue. However, the conservative justice did seem concerned with Congress’ lack of involvement in the creation of the policy. “It’s as if … the president is setting the policy and the Congress is executing it. That’s just upside down,” Kennedy said.

The U.S. House of Representatives was represented during oral argument by Washington lawyer Erin Murphy, who in addition to reiterating arguments made by Texas, argued the phrase “lawful presence” was synonymous with the phrase congressionally conferred legal status. Chief Justice Roberts asked Verrilli if that language meant Obama could grant deferred removal to each unlawful alien in the U.S. Verrilli’s answer was “definitely not.”

“What it means in the immigration world is not that you have a legal right to be in the United States, that your status has changed in any way [or] that you have any defense to removal,” Verrilli said. “It doesn’t mean any of those things, and it never has. At that fundamental level, we are not trying to change anybody’s legal status.”

Members of the press inside the courtroom noted Roberts didn’t appear satisfied with the answer. However, they said Roberts seemed to indicate if small changes were made to the proposed deferred action programs, he may be inclined to support the order.

The court’s decision in the case is expected to come by the end of June.

Immigration reform advocates hope either Roberts or Kennedy, if not both, side with the Obama administration and the liberal justices. Following Justice Antonin Scalia’s death, a tie in the court’s decision would mean a lower court ruling that stopped the policy from going into effect will stand, and programs created with the intent to shield millions of people from deportation, “will never go into effect,” as NPR’s Nina Totenberg reported.