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4-4 Decision or Something Else. Experts Remain Optimistic

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Carmen Cornejo
Written by Carmen Cornejo

Analysts remain optimistic the Supreme Court will rule in favor of lifting the injunction to President Obama’s executive orders granting Deferred Action to undocumented parents of U.S. citizen and legal resident children, and to an extended group of those people brought as children to the U.S.

The historic case United States v. Texas was presented in front of the Supreme Court Monday, April 18, 2016 while thousands of immigrants and their allies gathered in front of the magnificent Supreme Court building in Washington, D.C. to rally in support of President Obama’s executive orders.

The case is significant since it not only deals with dramatic changes in immigration policy but also because it challenges the authority of the executive branch of the U.S. government.

It is calculated that 4 million people will be favorably impacted by the executive actions known as DAPA (Deferred Action for Parental Accountability) and the extension of DACA. Read what you need to know about DAPA and DACA + and the Supreme Court.

Immigration attorneys closely watching the case said they expected tough questioning from some of the justices, and it is not surprising many consider that the Supreme Court is divided evenly on the issue.

The discussion yesterday was centered on the “standing” issue. To have “standing,” just one state has to prove it could suffer definite injury or harm due to the implementation of DAPA or expanded DACA.

Lawyers representing Texas and 25 other states said they will suffer damages if DAPA and DACA + are implemented since Texas issues subsidized drivers’ licenses to all deferred action recipients and other categories of individuals with legal presence in the U.S.

In particular, the arguments expressed yesterday reinforced the federal government’s position that Texas had no basis to file this lawsuit in the first place. At one point the damages were described as speculative and incidental.

The government’s lawyer pointed out that “Texas issues licenses to aliens on the basis of deferred action itself.” In other words, Texas does not challenge, but even further concedes the government’s power to grant deferred action to these individuals.

In the view of experts, Texas has failed to explain any connection between the injury it claims (additional driver’s license subsidies) and the policy it is challenging. If successful, this challenge could open the door to myriad lawsuits against the federal government for any policy states deem would cost them money.

Furthermore, “the injury alleged by Texas is self-inflicted,” as indicated by a 5th circuit judge. Texas’s decision to issue the licenses to Deferred Action recipients and others with legal presence in the U.S. is a decision at state level, not a mandate of the federal government.

The other important issue analysts thought would be discussed, “the take care” clause, was not even brought into the discussion. The “Take Care Clause” of the U.S. Constitution says the President must “take care that the laws be faithfully executed.” In simpler terms, the President of the United States must follow the laws.

The American Immigration Lawyers Association (AILA) posted a web cast with experts giving their analysis on the United States v. Texas arguments.

The Supreme Court is expected to issue their decision no later than the end of June 2016.