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In November of 2014, Secretary of Homeland Security Johnson issued new policies based upon President Obama’s Executive Order allowing certain undocumented individuals who entered the U.S. on or before January 1, 2010, to apply for “deferred action” from being deported and to grant them work authorizations. These policies specifically apply to individuals who entered the U.S. illegally as children under the age of 16 or who are parents of U.S. citizens or lawful permanent residents. The State of Texas then sued in federal court on grounds that the Executive Order exceeded the President’s authority, and the district court issued an injunction prohibiting implementation of the proposed policies. The district court’s decision was affirmed on appeal by the 5th Circuit Court of Appeals, and implementation has been on hold ever since.

The case, United States v. Texas, was subsequently appealed to the U.S. Supreme Court, and on April 18, 2016, the U.S. Supreme Court heard arguments by the U.S. Solicitor General arguing for the implementation of the President’s Executive Order. The State of Texas, joined by 25 other states, including North Carolina, argued against implementation.

In oral arguments, Justices Breyer and Roberts appeared to take opposing views on Texas’ standing to challenge the Executive Order. Justice Breyer observed that if Texas were granted standing to sue, every case where a state disagreed with the federal government’s policies could wind up in court. Conversely, Chief Justice Roberts suggested that Texas should be able to challenge the policies based on the resulting increased costs to the state, asking the rhetorical question, “Isn’t losing money the classic case for standing?”

The court also focused on the fact that the federal government does not have the funds necessary to deport 11-plus million undocumented immigrants. Justice Ginsburg asked, “How much of a factor is the reality that we have 11.3 million undocumented aliens in this country, and Congress… has provided funds for removing about 4 million. So inevitably, priorities have to be set.” (Justice Ginsburg’s question actually understates the problem, as Congressional funding levels would be sufficient for 400,000 removals, not four million.)

Suggesting another line of argument for implementation, Justice Sotomayor suggested the Administration had the executive authority to create such a program because of Congressional inaction. “Here, we have a Congress that’s decided… they don’t like [immigration legislation] – and… Congress has remained silent.” Justices Breyer and Kagan also expressed support for the Administration’s position.

Finally, Justice Kennedy expressed some support for the states. He said that when it came to an immigration policy affecting so many individuals, “what we’re doing is defining the limits of discretion. And it seems to me that is a legislative, not an executive act.”

On the basis of the Justices’ statements during oral arguments, a 4-4 split decisions seems likely, with Justices Roberts, Kennedy, Alito, and Thomas likely to vote in favor of upholding the lower courts’ decisions and Justices Kagan, Sotomayor, Breyer, and Ginsburg likely to vote in favor of overturning them. In the event of a split decision, the Fifth Circuit’s affirmation would remain in effect and implementation would remain permanently on hold. The court’s decision is expected in June, profoundly affecting over 11 million people in the U.S. and potentially the state governments and employers where they reside.

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