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Supreme Court Appears Divided On Immigration Executive Orders

Opening arguments were heard this week by the Supreme Court in United States v. Texas, the much-anticipated battle over President Obama's immigration executive orders. While there is more deliberation to be had, the court's eight justices seemed sharply split on the lawfulness of the DAPA program which, if approved, will shield millions of undocumented residents from deportation.

As the New York Times reports, the lawsuit, brought against the federal government by Texas and 25 other supporting states, claims that the DAPA program would have drastic economic consequences for Texas, particularly if it has to issue non-citizens drivers' licenses. It also claims that Obama exceeded his presidential powers when issuing the executive orders in November 2014. The White House claims that the orders were issued only after years of congressional Republican obstruction of bipartisan immigration legislation.

Solicitor General Donald B. Verrilli Jr. represented the federal government in the opening arguments and quickly found himself fielding questions from Chief Justice Roberts. When Verrilli suggested that Texas could simply change its drivers' license law, Roberts said that federal government would sue Texas—a prediction Verrilli couldn't deny. Roberts concluded that caught between predicted negative effects of DAPA and a federal lawsuit, Texas probably did have grounds to challenge the orders.

However, not every justice was convinced by Texas drivers' license claim. "Why can’t you just let people wait on line?" asked Justice Sonia Sotomayor to Texas Solicitor General Scott A. Keller. Justices who have been skeptical of the lawsuit question whether or not Texas has the grounds to file one since no actual negative consequences have occurred.

What happens if there is a tie?

The recent death of Justice Antonin Scalia has left the SCOTUS in a precarious situation that could result in a deadlocked 4-4 tie. And a tie could happen: Justice Roberts' candor during the opening arguments colored him significantly skeptical of Obama's executive orders. Even liberal-leaning justice Anthony Kennedy seemed concerned with President Obama's actions. "It’s as if the president is defining the policy and the Congress is executing it," he said. "That’s just upside down."

In the event of a tie, the lower court's rejection of Obama's orders would remain, at least until the court is restored to nine justices—then the appeal could be reheard. In the meantime, however, as Justice Sotomayor pointed out, the country's systemic immigration issue remains. "Nearly 11 million unauthorized aliens are here in the shadows," she said. "They’re here whether we want them or not."

If you are facing an immigration matter, the compassionate and knowledgeable Louisiana immigration attorneys at Berry Appleman & Leiden LLP invite you to call them today. Our legal team is dedicated to helping individuals, couples, and entire families navigate their immigration matters and securing the solutions they need to continue their lives here in the U.S.

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