Posted on April 18, 2016

Supreme Court Divided on Obama’s Immigration Actions

Ariane de Vogue, CNN, April 18, 2016

The Supreme Court appeared closely divided along ideological lines during oral arguments Monday in a case that could determine President Barack Obama’s legacy on immigration.

Conservative justices questioned Obama’s authority to use executive actions to shield some 4 million undocumented immigrants from deportation. Chief Justice John Roberts and Justice Samuel Alito seemed particularly concerned with language in the administration’s guidance that said the program’s recipients would be “lawfully present,” which they suggested would contradict immigration law.

“How is it possible to lawfully work in the United States without lawfully being in the United States?” Alito asked.

Roberts added: “I mean, they’re lawfully present, and yet, they’re present in violation of the law?”

Liberals on the bench seemed sympathetic to the administration’s arguments. Justice Ruth Bader Ginsburg noted at one point that there are 11.3 million undocumented aliens in the country and Congress has provided funds for removing about 4 million. “So inevitably, priorities have to be set,” she said.

Justice Sonia Sotomayor said there are not enough resources to deport everyone. “They are here whether we want them or not,” she said.

Obama announced the moves to great fanfare in late 2014, as a response to congressional inaction on immigration reform. But a federal court blocked them after Texas and 25 other states sued.

Busloads of immigrants’ rights activists–some of them undocumented–appeared on the court’s plaza to support the policies. {snip}


At one point, Justice Anthony Kennedy suggested that the president might have strayed into Congress’ territory. “It’s as if–that the President is setting the policy and Congress is executing it,” he said. “That’s just upside down.”

The GOP Congress was involved at oral arguments as well. The House of Representatives, in an unusual move, intervened in the case against the administration, and had 15 minutes before the eight justices.

That only eight justices are hearing the case–due to the death in February of Justice Antonin Scalia–could impact the final result. A split court between the four Democratic-appointed justices and four GOP-appointed justices would mean the programs remain blocked and the case is sent back to the district court in Texas that blocked them in the first place.


For the administration, a key argument before the court is to say that the states do not have the legal right to bring the case in the first place. If it can convince a majority of justices on that issue, the court may not even get to the merits of the immigration debate.