Supreme Court May Kill Obama's Plan to Shield 5 Million Immigrants From Deportation

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On Monday, a top lawyer from the Obama administration faced a tough line of questioning from Supreme Court justices over a case that could decide the fate of up to five million undocumented immigrants. 

The case, which pits 26 states against the White House, contests the legality of President Obama's Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program, which he announced through executive actions in 2014.

There's a great deal at stake. The program would protect close to 5 million undocumented immigrants who are parents of United States citizens or permanent residents and provide them with the opportunity to apply for work permits, assuming they've resided in the country for a minimum of five years, pax taxes and don't fail a background check.

Read more: A Divided Supreme Court Spares Public Labor Unions From a Devastating Blow

The New York Times reported that Monday morning's oral arguments involved some "sharp questions" from the justices:

Justice Anthony M. Kennedy questioned whether the president can defer deportations for millions of people without specific congressional authorization, saying "that is a legislative task, not an executive task."

"It's as if the president is defining the policy and the Congress is executing it," Justice Kennedy said. "That's just upside down."

Immigration reform advocates protesting outside of the Supreme Court on Monday.Source: Pablo Martinez Monsivais/AP
Immigration reform advocates protesting outside of the Supreme Court on Monday.  Pablo Martinez Monsivais/AP

If the Supreme Court, which has had only eight justices since the death of Justice Antonin Scalia in February, ties on the ruling, it will uphold a lower court ruling against the plan and would obstruct the Obama administration's ambitions. 

The possibility of a ruling in favor of the Obama administration is possible. As Richard Lugar, a former senator from Indiana, noted in a New York Times op-ed on Monday, the executive branch has long been given a great deal of latitude in dealing with enforcement of immigration law, both by Congress and the Supreme Court: 

Congress has repeatedly granted the executive branch broad power in enforcing immigration laws. The 2002 law creating the Department of Homeland Security explicitly said the executive should set "national immigration enforcement policies and priorities." The Supreme Court has recognized the leeway Congress gives the executive branch in deportations. In a 2012 majority opinion written by Justice Anthony M. Kennedy and joined by Chief Justice John G. Roberts Jr., the court noted that "a principal feature of the removal system is the broad discretion exercised by immigration officials," including the decision "whether it makes sense to pursue removal at all."     

Notably, Chief Justice Roberts and Justice Anthony Kennedy joined three liberal justices in the last high-profile immigration case, striking down Arizona's controversial immigration law in 2012. 

The Supreme Court's ruling isn't expected until June, but the stakes are high — both for the undocumented immigrants whose lives would be changed by the ruling, and also for Obama's legacy on immigration. 

If the Supreme Court rules against the president, Obama, who has overseen more deportations than any other president in American history, will likely be remembered on immigration as "deporter-in-chief," in the words of National Council of La Raza President Janet Murguia. But if the court rules in his favor, he will have achieved some redemption in the eyes of many advocates.