Supreme Court weighs scope of presidential power in immigration case

The Supreme Court heard arguments in a challenge to President Obama’s actions that would defer deportations of many undocumented immigrants. Marcia Coyle of The National Law Journal joins Hari Sreenivasan to take a closer look at the case and the implications of a potentially split court.

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    There was just one case on the docket today for this shorthanded Supreme Court. But that case happened to be one of the biggest of the term: a dispute over immigration and the scope of presidential power.

    The arguments inside the court drew hundreds of pro-immigration demonstrators outside, chanting, "Yes, we can" in Spanish. They were there supporting the president's program known as DAPA, Deferred Action for Parents of Americans. It shields some four million people from deportation.

    LUIS ORTEGA, Son of Undocumented Immigrant: My dad travels all over the state of Texas. And every time he goes out, we live in the fear that he's going to be deported. And families shouldn't live like this.


    Congressional supporters also turned out to defend the president's acting without congressional approval.

    REP. LUIS GUTIERREZ (D), Illinois: The president of the United States has taken actions that were clearly established today in the court that Ronald Reagan took, that George Bush took.

    REP. ZOE LOFGREN (D), California: It was made abundantly clear that the ability of the president to grant deferred action is of long standing and based in statute and regulation. To deny that at this point would be an extraordinary departure from law and history.


    But Texas and 25 two other states have mounted the legal challenge to DAPA. They argue the president did overstep his constitutional authority.

  • KEN PAXTON, Attorney General, Texas:

    If we allow a president, whether it's this president or a future president, no matter what their political persuasion or their party, to make changes in the law without congressional approval, then we will end up with a perverted Constitution.


    A small group turned out today to support that position, including several from Congress.

    REP. STEVE KING (R), Iowa: It's very clear, even from the beginning, they created groups or classes of people that would get blanket amnesty under the directive given by the president.


    Lower courts have put the program on hold. But with the death of Justice Antonin Scalia, a 4-to-4 split on the high court would leave the program in legal limbo.

    We get more now on today's arguments from someone who was in the courtroom today, Marcia Coyle, chief Washington correspondent for "The National Law Journal" and a "NewsHour" regular.

    So, what's at the core of the dispute, from what you heard today?

  • MARCIA COYLE, The National Law Journal:

    There are a number of issues before the court that Texas raises about this program, but the arguments today really focused on two, mainly two.

    The first issue has to do — it's a threshold issue: Does Texas actually have the right to be in federal court suing the government over this program? This is what we call standing to sue. Texas argues that it does have standing because it will suffer an injury, a financial injury, in what it's going to cost to deliver license — driver's licenses to these immigrants.

    The government contends they don't have standing, that this is not the kind of injury. It's an incidental injury. Texas could easily change its own law which provides these licenses to not give them to this category of immigrants. So, when — the issue was addressed right away with the start of the arguments.

    And here you had the chief justice and Justice Alito for the most part answering — asking the most skeptical questions of the Obama administration's lawyer, Solicitor General Donald Verrilli. Chief Justice Roberts said, for example, isn't money the classic standing injury? And, again, the government, Mr. Verrilli said, not in this case. This is a case where it's almost hypothetical. The program hasn't begun. Texas hasn't incurred an injury yet. Let them change their law.

    And then the chief justice responds, well, if they change their law not to give licenses, won't you sue them? And that, again, the — Mr. Verrilli said was hypothetical.

    So, that was the first. And then you had the more liberal justices turning to the standing question with Texas' there, Scott Keller. And, there, Justice Breyer said your view of standing here, your injury here is in a way so broad that every time a state has a political disagreement with the federal government, it would sue the federal government. We could have a flood of litigation.


    So those are the two big issues.


    That's one issue.


    That's just one issue.



    The second issue is really the fundamental issue. Is this program legal? Does it violate the law? Did the president go a step too far? And there again, you saw almost the ideological breakdown. You had the government saying, we're exercising enforcement discretion. There are 11 million immigrants. Congress never appropriated enough money for us to deport all of them, but Congress does give us this enforcement discretion that presidents have been exercising for decades.

    Texas says, uh-uh, this is a different type of program. By giving deferred deportation to a whole class of illegal immigrants, you are actually changing their legal status, and you can't do that without a congressional act.

    There again, you saw Justice Kennedy saying to the Obama administration lawyer, you seem to be setting policy and asking Congress to follow along. That seems upside-down.


    So does this — the absence of Justice Scalia increase the likelihood this is a 4-4 just by the way that you're asking — you're telling us where the justices were pointing their questions?


    Absolutely it does. And when I came out of the arguments, I think it wasn't clear to me at least how the court was going to resolve this.

    If they find — if they decide 4-4 that they're on standing, for example, with Texas — or even if they decide 5-4 — I'm sorry — 5-3 that there is no standing, that's the end of the case for Texas. Texas loses. But if there is a 4-4 split, the case will go on. It will go back to the district court in Texas for a full trial.

    This was just a preliminary nationwide injunction that is holding up the program right now. Note, the district court has not ruled on all of the merits yet.


    All right, Marcia Coyle from "The National Law Journal," thanks so much.


    My pleasure, Hari.

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