US Immigration and New York Employment Law

Supreme Court Splits on Obama Immigration Reform

President Obama’s executive initiatives on immigration are discussed in the Supreme Court now. These initiatives include two acts: DAPA of 2014 and DACA of 2012. The first one – Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) – offers temporary protection from deportation and work permits to more than 4 million illegal immigrants, who are parents of the US citizens and lawful permanent residents (LPRs). The second – Deferred Action for Childhood Arrivals (DACA) – offers protection to those who were brought illegally to this country as children.

In February 2015 a federal judge in Texas blocked the presidential executive initiatives. Now a suit filed by the State of Texas and 25 other mostly Republican states. Now Obama immigration reform is in the US Supreme Court. The whole issue rotates around two major questions. The first one is whether Texas has standing to bring this action against the federal government. The second – whether Obama immigration reform was merely about implementing the existing law (this would be consistent with President executive powers), or setting a new one (that would be a big problem, because legislative authority is within exclusive Congress powers).

The first question is whether Texas has any real damage as a result of Obama immigration reform, because if it doesn’t, then Texas has no standing. The Supreme Court cannot decide hypothetical questions. According to Texas officials, as a result of Obama immigration reform the State of Texas will face significant financial burden related to the issuing of the state driver’s licenses. The thing is that now Texas charges a $24 fee for a driver’s license, while the actual costs of the processing the driver’s license application and issuing the license is $200. DAPA provides a temporary status for parents of the US citizens and LPRs, including the right to apply for a driver’s license. In this situation according to the Texas authorities, their state “would lose millions of dollars if even a small fraction of DAPA-eligible aliens applied for driver’s licenses.”

On the first question it looks like Chief Justice Roberts is siding with the court of Texas, making the point that Obama immigration reform will cause Texas certain financial burden related to issuing subsidized driver’s licenses to illegal immigrants in the state.

The second question doesn’t look like in favor of the federal government either. The critical vote in this issue is that of Justice Anthony Kennedy, who is leaning toward the anti-immigrant position on this issue. He argues that the fate of more than four million people should be decided by a legislative action and not an executive one. According to him, this issue is about the limits of discretion and he thinks that this act is a legislative and not an executive.

Chief Justice Roberts adds up to the uncertainty by making the point that under DAPA certain illegal immigrants, on the one hand, would become lawfully present in the USA, and on the other hand, would remain “technically in violation of the law” by their presence in the country. Justice Alito joined Justice Roberts and asked how is it possible while being in the USA unlawfully to be allowed to legally work here?

Another big issue imbedded in this case is about benefits for those who would be covered under DAPA. Such benefits as social security and Medicare are available for everybody who works legally in this country. Thus, if those who are covered under DAPA have a work permit, which is the case under Obama Executive Action, they are entitled to those benefits.

Although nobody can predict the outcome of the Supreme Court hearing, there is a real possibility that the eight Supreme Justices will split along the ideological lines in a 4-4 vote. If this is the case, the decision of the Texas federal court will stand and the Obama immigration reform will never be realized.