April Bamburg Apr. 18, 2016, 3:18pm


On April 18, the U.S. Supreme Court heard oral arguments in the case of the United States vs. Texas. This case looks at whether the federal government can issue a deferred-action policy for undocumented immigrants.

Lawyer and Cornell Law School Professor Stephen Yale-Loehr told the SE Texas Record that oral arguments on Monday would focus on three main issues:

• Does Texas have standing to sue the federal government?

• Was the government required to publish a rule for public comment before it came out with the Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) guidance?

• Did President Obama violate the immigration law President violate the immigration law or the Constitution by bypassing Congress in publishing guidance on DAPA and expanded DACA?

On the first point, Yale-Loehr explains that “both the U.S. District Court for the Southern District of Texas and the U.S. Court of Appeals for the Fifth Circuit held that the extra amount Texas would have to spend on driver's licenses for DAPA program participants was sufficient to grant standing to the states to be able to sue. They contend it will cost them millions of dollars when immigrants who are eligible under the new policies apply for driver's licenses. They also say states will incur additional health care, education, and law enforcement costs.”

On the other side of the issue, the government argues that Texas and the other states lack standing to sue because it is premature to determine whether the states will suffer financially if the DAPA and expanded DACA programs start. Other states argue they will actually benefits financially.

The second point in the arguments is whether the government was required to seek public comment. On this, Yale-Loehr said that the Administrative Procedure Act requires agencies to publish “substantive” rules for comment, but they do not have to publish proposed rules that only interpret existing guidance.

“Texas claims that DAPA and expanded DACA are substantive rules,” Yale-Loehr said. “The federal government argues that DAPA and expanded DACA are merely an interpretation of the president’s existing enforcement authority.”

And in the final area of oral arguments, Texas argues that President Obama did not have the authority to issue DAPA and expand DACA on his own. “The federal government argues that the President does have the authority to set enforcement authority, and that DAPA and expanded DACA simply reflect that authority by giving DAPA and expanded DACA beneficiaries a temporary reprieve from deportation,” Yale-Loehr said.

There are two situations where these immigration reforms could be derailed. The first is if Texas prevails; also, if the sitting Supreme Court justices issue a 4-4 verdict, DAPA and expanded DACA will not go forward.

“The oral arguments on Monday April 18 in United States v. Texas are important for several reasons. First, the oral arguments may provide hints of how the Supreme Court will rule in late June on the legality of President Obama’s executive action to protect more than 4 million undocumented immigrants from deportation. Second, the oral arguments could indicate how the Justices feel about executive actions generally. The Court’s decision in June could redefine the balance of power between Congress and the President,” Yale-Loehr said.

“The question here is whether the President exceeded that broad power by not simply deferring the deportations of several million undocumented immigrants but also granting them work permits. I doubt the Supreme Court will rule on the general authority of executive actions and the balance of power between the President and Congress. But people involved in other controversies involving executive actions, such as gun control or environmental policy, will certainly review the oral arguments in United States v. Texas closely to try to determine how legal challenges in those areas might fare.”

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