Editorial: It’s the Supreme Court’s turn to weigh Obama’s immigration actions

An immigration rally outside the Supreme Court in Washington in January of 2015.

An immigration rally outside the Supreme Court in Washington in January of 2015.

(Susan Walsh / Associated Press)

The Supreme Court on Monday heard oral arguments in United States vs. Texas, a case that will determine whether 4 million people living in the country illegally will get a reprieve from the threat of deportation, as President Obama sought to provide. It’s a contentious case framed as much by politics as law, and one that has gained even more urgency with the rise of Donald “Throw Them All Out and Build a Wall” Trump as the face of a troubling anti-immigrant populist fervor. But the president was right in November 2014 when he issued an executive order expanding the pool of people eligible for deferrals because they were brought to the United States as children, and offering deferrals to the parents of U.S. citizens and legal permanent residents.

There are at least 11 million people living in the U.S. without permission, nearly two-thirds of whom have been here for more than a decade. To track them all down and throw them out would be cruel, inordinately expensive, damaging to communities and disastrous for such businesses as construction, landscaping and food production. Trump and Sen. Ted Cruz (R-Texas) may not be able to stomach the notion, but those “illegals” have become part of our society.

After the Dream Act died in the Senate in 2010, Obama crafted the Deferred Action for Childhood Arrivals policy to offer a reprieve to more than 1 million people living here illegally since childhood. In the wake of House Republicans’ refusal to consider the bipartisan Senate immigration reform bill in 2013, Obama broadened the definition of those eligible for reprieves under his previous order, while also granting similar treatment to those in the country illegally who are the parents of citizens or green-card holders.


But Texas led a challenge by 26 Republican-dominated state governments that accused the president of failing to follow the required procedures in adopting new regulations and of violating the Constitution’s requirement that the president “take care” to faithfully execute the laws Congress enacts. Despite their weak legal arguments, a Texas federal judge issued an injunction against Obama’s new deferrals, leading to Monday’s arguments before the high court, which were dominated by questions about whether the president overstepped his authority, and whether the states have legal standing to challenge the deferrals.

To bring a legal challenge, a petitioner must show that it has or will suffer “concrete and particularized” injury. The lower courts accepted Texas’ claim that the deferrals would harm the state by increasing its costs under a state policy that allows driver’s licenses for noncitizens lawfully living in the state. That’s rather attenuated. The federal government doesn’t order states to issue the driver’s licenses, and Texas could avoid the damage by changing its policy or setting the fee high enough to recover its costs.

We believe the courts should be as open as possible to those seeking redress from wrongs, and should not deny standing lightly. But we also think it is wrong for elected officials to use the courts to settle political disputes rather than legal issues as Texas and the other states are doing here. If the Supreme Court tells Texas et al that they’re fighting a political battle in the wrong arena, that would send a welcome signal.

Conversely, a 4-4 split would in effect end the deferrals, which would be bad for the country and for millions of people carving out lives for themselves. We would prefer the court to affirm that the president acted within his powers in deciding whom to target for removal and whom to give permission to work in the country — powers established in immigration law. And in the process, the justices can grant some relief to immigrant families who have become integral to the fabric of the nation.

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3:28 p.m.: The article was updated to include information from Monday’s oral arguments.

The article was originally published at 5:00 a.m.