The much-awaited immigration case challenging President Barack Obama's right to waive deportation for unauthorized immigrants was argued before the Supreme Court Monday. It looks as though the administration may have a path to win – even if only on technicalities.
The two possible swing voters, Chief Justice John Roberts and Justice Anthony Kennedy, were at first hard on U.S. Solicitor General Donald Verrilli. But later, they hinted that they might be willing to find a legal mechanism to overturn the judgment of the appeals court that blocked the administration's plan.
There are essentially two ways the Obama administration could win the suit. The first, and easiest, would be for the court to dismiss the state of Texas lawsuit that prompted the U.S. Court of Appeals for the Fifth Circuit decision now being reviewed.
In its brief, the federal government argued that Texas lacks the standing to bring the suit because it isn't harmed by the law. In the oral argument, Texas Solicitor General Scott Keller said his state is harmed because, under its own law, it must issue driver's licenses for anyone the federal government authorizes to be in the U.S. legally. Because the executive order declares undocumented parents of children born in the U.S. to be "lawfully present," Texas said it would have to incur the cost of issuing them driver's licenses.
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The court could say that issuing more drivers licenses wouldn't harm Texas enough to give it the legal standing to sue under the Constitution.
Justice Stephen Breyer made another argument about why Texas didn't have standing. He cited the 1923 case of Massachusetts v. Mellon, in which the Supreme Court rejected the idea that any taxpayer could sue a state for an allegedly unconstitutional expense. Breyer drew an analogy to the state of Texas claiming that it could challenge the executive order because it might cause the state to spend more money.
The chief justice seemed skeptical. But Roberts was more sympathetic to Verrilli’s argument that the president doesn't actually need to insist that the undocumented persons are "lawfully present," as the executive order states. All Obama needed to do, Verrilli asserted, was to defer deportation of the immigrants in question.
Verrilli's gamble placed Texas in a difficult position. Keller, representing the state, all but admitted that the president tell parents of children born in the U.S. that they were low priority for deportation, and even give them a document saying so. But he stuck with his insistence that the executive order was unconstitutional because it would change the legal status of the undocumented parents to lawfully present – an action he said exceeded presidential authority.
But if the executive order doesn't actually change the person's legal status, and just defers deporting them, then there's nothing unconstitutional about it. Roberts seemed open to this argument.
Kennedy seemed to be thinking similarly. He proposed that Texas might want to challenge instead an existing federal regulation that says immigrants who have been granted a deferral for deportation are entitled to work. This suggestion implied that Kennedy might be prepared to hold that the executive order didn't change anyone's legal status or confer work authorization on its own – which would be at least a partial victory for the Obama administration.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.