WASHINGTON — There was little indication at the Supreme Court on Monday that President Barack Obama has found needed conservative support to revive his stalled plan to shield millions of undocumented immigrants from deportation and give them the right to work legally in this country.
Instead, the court’s conservatives and liberals seemed split, and a 4-4 tie would leave in place a lower court’s decision that the president exceeded his powers in issuing the directive. It could affect about 4 million people who have lived in the country illegally since 2010 and have family ties to U.S. citizens and others lawfully in the country.
In questions and comments, the administration did not receive support from Chief Justice John Roberts Jr. or Justice Anthony Kennedy, seen as most likely to let the program proceed. But in this case, oral arguments might not tell the whole story.
In the wake of the death of Justice Antonin Scalia, the court seems wary of having too many important cases concluded with a split decision.
It has shown itself willing to go to unusual lengths to try to find compromise, and that might be what happens in private now that the case has been argued.
But in 90 minutes of arguments, the justices showed a common divide: conservatives supportive of the complaints of Texas and 25 other states that Obama’s executive action went too far, and the court’s four liberals saying it seemed like a power that other presidents have exercised.
It was another in the enduring battles in which the court must weigh Obama’s social agenda and Republican opposition to it.
The justices are confronting a fundamental tension of Obama’s tenure: whether he is correctly using the substantial powers of his office to propel the nation past political gridlock or whether he has ignored constitutional boundaries to unilaterally impose policies that should require congressional acquiescence.
Obama’s immigration program, Deferred Action for Parents of Americans and Lawful Permanent Residents, would allow illegal immigrants in the affected categories to remain in the country and apply for work permits if they have been here at least five years and have not committed felonies or repeated misdemeanors.
Obama announced the executive action in November 2014 after House Republicans did not act on comprehensive immigration reform.
The administration says the program is a way for a government with limited resources to prioritize which illegal immigrants it will move first to deport. As a practical matter, the government has never deported more than 500,000 undocumented immigrants per year and often sends home far fewer than that.
But Texas and the Republican-led states sued to stop the initiative, and a federal district judge in Texas then a panel of the 5th U.S. Circuit Court of Appeals said the program could not be implemented.
Kennedy said it seemed the president was expounding immigration policy and calling on Congress to come along. “That’s just upside down,” Kennedy said.
Roberts said the logical extension of Solicitor General Donald B. Verrilli Jr.’s view of presidential power was that the president could decide not to deport any immigrant in the country illegally. Verrilli denied that was the case.
The liberals seemed to agree with the administration’s contention that the states have no legal standing to sue because it is up to the federal government to set immigration policy, and that the Department of Homeland Security did not violate federal statutes in devising the program.
The White House said it makes sense to concentrate on border security and deporting illegal immigrants who commit crimes, rather than deporting those who have made a life in this country and have connections through their children. It notes that the program does not provide a path to citizenship, and that even those who qualify for the program could be deported at any time.
Justice Stephen Breyer was most skeptical of Texas’ argument that it had standing to sue because of a state law requiring it to provide driver’s licenses to those authorized to work. He said it could lead to a flood of litigation on other matters.
Justices Ruth Bader Ginsburg and Elena Kagan argued that Texas seemed to have conceded that the president could grant delayed deportation individually, and thus could do it to classes of immigrants.
Justice Sonia Sotomayor objected when Texas Solicitor General Scott Keller said Obama’s action was “unprecedented.”
“How can you say that?” she asked, saying previous presidents have protected specific groups from deportation.
One important question in the case is Texas’ legal standing to sue. District Judge Andrew Hanen agreed with the state that, because it would face a financial cost in providing driver’s licenses to those covered by the new program, it had standing to challenge the initiative.
The administration countered that Texas was not required to issue the licenses. It should not be able to injure itself, the White House argued, to achieve standing to sue.
In the 2-1 decision by a panel of the 5th U.S. Circuit Court of Appeals, U.S. Circuit Judge Jerry Smith rejected the administration’s argument that DAPA was a form of “prosecutorial discretion” in which a government with limited resources sets priorities for enforcement.
When the court accepted the case in January, it added a constitutional question about whether Obama’s actions violated the Take Care Clause, which commands the president to “take care that the laws be faithfully executed.”
