Tanvi Misra is a staff writer for CityLab covering immigrant communities, housing, economic inequality, and culture. She also authors Navigator, a weekly newsletter for urban explorers (subscribe here). Her work also appears in The Atlantic, NPR, and BBC.
In the wake of Monday’s oral arguments, it’s time to grapple with what a 4-4 decision in United States v. Texas would mean.
Eighteen-year-old Rocío Mondragón Reyes stood quietly, a couple of steps apart from the crowd of pro-immigrant activists that had gathered in front of the U.S. Supreme Court. She was there Monday morning representing her parents, she said, who are undocumented.
“My parents constantly tell me and my siblings, ’I’m here for you guys, I’d love to be back in my home country where I don’t feel unwanted. But I’m here for you,’” she says. They have taken risks, made sacrifices, and worked incredibly hard, she adds, to offer her a chance at an “American dream” to which they themselves had no access. And it’s paid off. She’s a freshman at Georgetown University studying culture, politics, and Latin American studies. After she graduates, she hopes to go to law school. “I’m a project of [my parents’] values,” she says.
Mondragón Reyes remained outside the court, holding up a sign that read, in part, ”Free them from fear,” while the fate of her parents and over 4 million undocumented immigrants like them was being debated inside. But as oral arguments in the case of United States v. Texas unfolded, it became increasingly clear that relief may not yet be on the horizon for the Mondragón Reyes family.
An ‘imaginative lawsuit’
The lawsuit currently before the court was initiated by Texas and 25 other Republican-led states in an effort to challenge President Obama’s 2014 executive action on immigration. Key among the aims of that action was to provide deportation relief to undocumented parents of U.S. citizens through the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.
The U.S. Constitution makes plain that immigration law falls within the exclusive purview of the federal government. But Texas and the other 25 states have argued that they have standing to bring this case to federal court if at least one of them (in this case, Texas) faces economic hardship or “injury” as a result of DAPA. Texas claims that the cost of issuing driver’s licenses to newly eligible immigrants would be immense. In addition, the states are challenging the legality of DAPA, insisting that it violates the Immigration and Nationality Act, and that it wasn’t rolled out in keeping with the Administrative Procedure Act.
The government’s position has been that Obama’s executive action falls well within his executive discretion, and that the costs Texas says it would potentially incur are “self-imposed.”
In February 2015, a federal district court in Brownsville, Texas, ruled in favor of the 26 states and put Obama’s policies on hold. Months later, the U.S. Fifth Circuit Court of Appeals upheld that decision by a 2-1 vote.
When the U.S. Supreme Court agreed to review the case in January, it sought to clarify the issues that the lower courts had already addressed, but it also added a new question: whether, in this case, President Obama “faithfully executed” the federal immigration laws passed by Congress as per the “Take Care” clause of the U.S. Constitution.
These may all sound like routine points of law, but for many court watchers, they are anything but. In an op-ed published Sunday, The New York Times editorial board deemed United States v. Texas a “naked political dispute masquerading as a legal one.” Over at SCOTUSBlog, Lyle Denniston came to the same conclusion. Here’s what he wrote on April 11:
In many ways, the case of United States v. Texas illustrates much about the current political climate in America and in the nation’s capital, in particular. It reflects gridlock, partisan polarization, and the use of sometimes imaginative lawsuits to pursue political or policy agendas.
A battle of ideologies
Inside the court Monday, neither side spoke for very long before they were caught in an intense crossfire of questions from the bench.
One of the main sticking points for the conservative justices seemed to be the implication of the term “lawful presence.” Here’s a question Chief Justice John Roberts asked U.S. Solicitor General Donald Verrilli, who represented the government:
On page 16, you quote the Guidance that says, "The individuals covered are lawfully present in the United States." And less than a page later, you say, "Aliens with deferred action are present in violation of the law." Now, that must have been a hard sentence to write. They're lawfully present, and yet, they're present in violation of the law.
It seems like a nit-picky query about semantics, but it really gets to the heart of the disagreement between the federal government and the states on the legality and scope of DAPA. The 26 states contend that this term confers a special status to a wide berth of undocumented immigrants, allowing them benefits such as driver’s licenses or even Social Security. Justice Anthony Kennedy, considered the swing vote in this case, seemed focused on the question of whether the President had overreached.
“That the President is setting the policy and the Congress is executing it—That's just upside down,” he said. Kennedy’s comments are particularly significant because he wrote the majority opinion in Arizona v. United States, which emphasized the federal government’s “broad, undoubted power over immigration and alien status.”
In his arguments, Verrilli maintained that “lawful presence” was just a label—a signifier of the deportation priorities of the federal government. “If the Court thinks it's a problem and wants to put a red pencil through it … it's totally fine,” he said. The “technical legal significance with respect to eligibility for Social Security benefits,” of that terminology, Verrilli said, “that's the tail on the dog and the flea on the tail of the dog.”
Justice Stephen Breyer repeatedly brought up the implication that this case could set a precedent in which states can sue the federal government on “nothing more than political disagreements of all kinds.” And Justice Sonia Sotomayor, at one point, suggested that she may not totally buy Texas’s economic harm argument. She asked Texas Solicitor General Scott Keller, who was representing the 26 states, “So why is it that you have to spend all this money? Why can't you just have your regular process and let people wait on line?”
A cleanly divided bench
It’s never a good idea to guess how the court might rule based solely on oral arguments, but it’s clear that the justices could end up voting along their traditional ideological lines, resulting in a 4-4 tie. In that case, the injunction delaying the implementation of Obama’s executive actions would hold—at least until a successor to the late Justice Antonin Scalia is confirmed, and perhaps even after. Such an impasse, as Vox’s Dara Lind explains, could very well lead to “judicial chaos”:
The United States v. Texas case would continue to plod, zombielike, through the courts until it receives a final ruling. Meanwhile, supporters of the president's executive actions may try to get a different coalition of states to sue in another court to start implementing them — creating a possible split between appellate courts, in which the executive actions were constitutional in parts of the U.S. and unconstitutional in other parts.
Whatever the Supreme Court decides, it won’t mean an end to the fight for the rights of undocumented immigrants living in the U.S., Mondragón Reyes says.
"I hope they make the right decision,” she says. “But at the end of the day [DAPA] is just a bandaid. It’s only just the first step.”