More than immigration policy at stake in DAPA case

Ninety minutes of oral argument last week pitted 26 states, along with the U.S. House of Representatives, against the Obama administration’s unilateral declaration that millions of people in the U.S. illegally can stay, work, and obtain benefits.

It would be understandable if court-watchers thought of George Orwell’s classic book 1984 after hearing the arguments because plain and clear language took a backseat in the federal government’s presentation.

President Barack Obama’s executive action, referred to as the Deferred Action for Parents of Americans and Lawful Permanent Residents, defines certain immigrants as “lawfully present” for the purpose of jobs, driver’s licenses, and certain other benefits. But it also says just a few pages later that these very same people are “present in violation of the law.”

If you hear a contradiction of terms here, you’re not alone.

An incredulous Chief Justice John Roberts asked the lawyer for the Obama administration, Solicitor General Donald Verrilli, several times about the definition of “lawfully present.”

Justice Samuel Alito was every bit as perplexed as the chief justice.

“And how is it possible to lawfully work in the United States without lawfully being in the United States?” he asked, adding later, “I’m just talking about the English language. I just don’t understand it. How can you be ... ­­How can it be lawful to work here but not lawful to be here?”

Verrilli explained that in the special world of immigrants, these seemingly opposite concepts exist in harmony. Mix the notion of “tolerance” with non-enforcement, and it makes practical sense.

“When your presence is going to be officially tolerated, you’re not here, you’re violating the immigration laws by being here,” he said. “You don’t have any rights, but your presence is going to be officially tolerated. When you’re in that circumstance, we allow you to work because it makes sense to allow you to work.”

But because these immigrants are still subject to discretionary removal at the federal government’s whim, that’s not really “lawful status” as much as it is “lawful presence.”

Texas Solicitor General Scott Keller, arguing for the states, disputed just how “discretionary” the government really is. In this case, the president enacted a policy not just without congressional input but in opposition to laws Congress did put in place. While the administration argues states can change their laws and stop issuing driver’s licenses with different rules, the federal government could then sue for discrimination.

If Verrilli had conservative justices shaking their heads in confusion, he had liberal justices nodding theirs in approval.

Justice Sonia Sotomayor talked numbers, noting the nearly 11 million immigrants in the country illegally can’t be deported due to a lack of resources.

“So they are here whether we want them or not,” she said.

And Justice Ruth Bader Ginsburg talked funding and priorities.

“Please, how much of a factor is the reality that we have 11.3 million undocumented aliens in the country, and Congress, the Legislature, has provided funds for removing about 4 million. So inevitably, priorities have to be set,” she said.

But apart from the numbers, the case has lots of legal questions to be answered, beginning with this: Do the states have standing to sue?

That’s the direction the government and the liberal justices kept steering the argument because if the answer is “no,” it’s game over.

But a federal judge and the 5th U.S. Circuit Court of Appeals found Texas does have standing to sue because of the high cost to the state of implementing federal policy.

The specific example used involves driver’s licenses issued to millions of undocumented immigrants who suddenly have the right to get one.

Sotomayor wasn’t swayed by that argument, noting notorious inefficiencies at the Department of Motor Vehicles. Rather than adding more staff, the states could just let immigrants stand in line like everyone else.

Keller replied that granting licenses is much more than just handing out paper. The integrity of the process matters, and federal law requires it.

Another legal question in this case: Did Obama violate the Constitution’s Take Care Clause, which says the president must “take care” to faithfully execute the laws of the United States.

“What we’re doing is defining the limits of discretion,” Justice Anthony Kennedy said. “And it seems to me that is a legislative, not an executive, act. All of the briefs go on for pages to the effect that the president has admitted a certain number of people and then Congress approves it. That seems to me to have it backwards. It’s as if ­­the president is setting the policy and the Congress is executing it. That’s just upside down.”

This case is about many different things, one reason the arguments went 90 minutes instead of the usual 60. Millions of people will be affected, as will a variety of important issues—law, politics, family policy, separation of powers, standing to sue, tax dollars.

And yet, as Montesquieu wrote in Spirit of the Laws, published in 1748, “when laws have ceased to be executed, as this can only come from corruption of the republic, the state is already lost.”

A 4-4 split looks likely, leaving the lower court ruling intact and rendering Obama’s immigration policy powerless. The justices are expected to issue their decision before the end of June.

Listen to Mary Reichard’s “Legal Docket” on The World and Everything in It.