Oral arguments recently in United States vs. Texas, the lawsuit challenging President Obama's controversial DAPA
(Deferred Action Against Parents of Americans) immigration executive order, made one thing distressingly clear: The eight Supreme Court justices are deeply divided along ideological lines just like the rest of the country. This is bad news for the president because if there is an even split among the justices, the lower court's injunction against implementing his order will stand.
But the administration has only itself to blame for this sorry state of affairs—not partisanship on the bench. The truth is, despite strong legal arguments, it has badly mishandled the case from start to finish.
Here's how the order works: It hands deportation relief for three years to some four to five million undocumented immigrants—about half of the illegal population—who were either brought to the country as minors or are parents of American children and don't have a criminal record. These folks can obtain an official note from immigration authorities that they qualify for "deferred deportation status." This designation, well within the purview of the presidency, makes them eligible for work authorization and driver's licenses. What it doesn't do is give them permanent legal status or green cards—in other words, amnesty. This means that should future presidents choose—or Congress ordain—they could be thrown out in a jiffy. It is a temporary, time-limited reprieve that many presidents, not just Obama, have handed to whole classes of undocumented immigrants.
But Donald G. Verrilli, the president's solicitor general who argued the case before the Supreme Court, made a complete hash of this argument. At one point Verrilli's brief notes that once implemented, the individuals covered by DAPA will be "lawfully present" in the United States. However, a page later, it says, "aliens with deferred action are present in violation of the law." The contradiction prompted Chief Justice John Roberts to muse how those covered by the order can be "lawfully present, and, yet, they're present in violation of the law."
This discrepancy is not such big deal, notes Margaret Stock, a conservative immigration attorney who he is running for Senate as an independent in Alaska. And if the justices were immigration law experts, they would be able to sort through the seeming contradiction. "But they are not," Stock, a member of the Federalist Society, maintains.
So it was up to Verrilli to put the administration's best foot forward and stick to the language of "deferred deportation" and avoid the phrase "lawful presence" (although, to be fair, this semantic misstep can be traced back to the order itself). Instead, he tied himself in knots—and wasted precious time when he could have been hitting other points.
But this was not Verrilli's only blunder. One of the key issues that will determine the outcome in this case is whether the 26 states that have sued the administration actually have the standing to do so. The states claim that they do because the driver's licenses they will have to issue will cost them money. Verrilli, however, maintains that they don't have the standing because the order doesn't require them to issue these licenses or subsidize them, their own state laws do—which they can change to avoid "injury." But this isn't that simple.
As Justices Roberts and Alito pointed out, the administration would sue states on equal protection grounds should they deny licenses to the undocumented, especially if, as the administration was claiming, they are now "lawfully present" in the country. "That's a real Catch-22," commented Roberts.
What Verrilli should have pointed out is that the whole injury argument is bogus. Why? Because driver's licenses for DAPA recipients would actually save the government money, which is one reason why the federal 2005 REAL ID Act gives states the green light to issue them and also stipulates the criteria the licenses will have to meet to be federally recognized for identification purposes. Indeed, if the government has decided to tolerate the presence of undocumented workers, then it makes no sense to deny them the ability to drive and work—because that would force them to either continue to work illegally (defeating the whole point of giving them temporary legal status) or look for alms from the government. The alternative, locking them up, would be far more expensive for the states and the feds. "It costs Texas a lot less to allow them to have driver licenses—even subsidized ones—than not allow them," insists Stock.
But Verrilli is not alone in failing to understand his own case. After all, the president, a Harvard-trained constitutional lawyer, has been sowing confusion even longer.
Indeed, prior to announcing DAPA in November 2014, Obama had said not once, not twice, but 22 times that he did not have the legal authority to offer mass deportation relief without Congressional authorization. "I am president. I am not king," he pleaded. And yet he did a 180-degree flip.
He may be right this time, but it is understandable that people are having trouble buying it. Why did he get things so wrong originally? Verrilli told the skeptical conservative justices that the president was speaking then without obtaining formal guidance from the Office of Legal Counsel. In other words, he didn't know what he was talking about.
But that's the charitable take. The truth is the president was playing politics. He didn't want to do anything before the 2014 midterm elections to avoid mobilizing Republicans against congressional Democrats. Pleading lack of authority was the best way to fend off Latino activists demanding action.
But, then, when he did issue the order, he didn't do so humbly with even a stab at an explanation as to why he pulled such an astonishing switcheroo. He pretended that he hadn't really maintained otherwise, drowning out the protests of critics with a loud drum roll to court Hispanics. Indeed, because he was more interested in taking credit rather than giving relief, he didn't just quietly issue guidance to field administrators (which is what Verrilli insisted to the justices that DAPA effectively was), he announced a grand new policy and gave it a name, even boasting that he'd "changed the law," virtually daring his Republican critics to sue him like a bullfighter waving a red flag before a bull. It is almost as if he wanted to keep the issue politically alive rather than settle it.
This cynicism has come back to bite him. Should the ruling, which is expected in June, go against him, he may well deserve it—but the millions of hard working undocumented folks desperately waiting for relief don't. His mishandling may jeopardize his legacy, but it'll jeopardize their lives.
A version of this column appreared in The Week.