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DAPA’s day at SCOTUS

Another day, another huge Supreme Court case involving Texas, a big policy item from President Obama at stake, and the fate of millions of people hanging in the balance.

The Supreme Court on Monday will hear the matter, one of its most significant this term, and a decision could be the most important related to immigration in decades. At stake is the extent of power the executive branch can wield and the fate of about 4 million immigrants potentially eligible for the program, most of whom have lived here illegally for more than 10 years.

It’s put Texas in the peculiar position of arguing against an initiative that essentially already exists and that as a policy once held bipartisan support. If the state prevails, it could signal the end of Obama’s original youth permit program too. It all underscores how far the pendulum against immigration reform has swung since President George W. Bush pushed a comprehensive overhaul nearly a decade ago.

Texas Attorney General Ken Paxton said the state’s lawsuit is not about immigration per se but whether the president has the authority to make a sweeping policy change that Texas argues is at odds with Obama’s obligation to enforce immigration law.

“This is fundamentally about the constitution and the future of this country, not just about immigration law or a Democratic president but about what can a president, no matter what his or her philosophy is, do,” Paxton said. “Do they have the ability now under the constitution to make law and step into the role Congress traditionally had?”

The Obama administration argues that it’s not in fact making new law, but prioritizing whom it should deport as mandated by Congress itself. Legislators allocate about $6 billion a year to enforce immigration, enough to deport roughly 300,000 immigrants, a fraction of the 11 million in the country illegally, Justice Department lawyers said in their brief filed last month with the Supreme Court.

At issue in both programs – deferred action for childhood arrivals, known as DACA, and deferred action for the parents of Americans, or DAPA – is a practice the government has employed as far back as the 1960s. But it was first publicly revealed when the Nixon White House tried to deport Beatles frontman John Lennon in 1972.


Texas doesn’t dispute the administration’s right to grant deferred action. But it contends the president’s programs allow a mass group of immigrants to apply, who are almost all approved. Typically deferral is granted on a case-by-case basis for people already in deportation proceedings. The state argues the initiatives improperly grant immigrants a “lawful presence,” while the administration contends the permits can be repealed at any time and their recipients deported.

In its brief, the government said more than 20 such policies for large classes of people have been enacted since the 1960s, including for Cubans after the island’s revolution and more than 1.5 million spouses and children of immigrants who were granted residency under President Ronald Reagan’s 1986 reforms. It also cites its 2012 youth program, which is similar in scope, but was not challenged by Texas.

Paxton said he didn’t know why the state didn’t argue the constitutionality of DACA.

It’s an interesting exclusion, given that the legal arguments for both DACA and its 2014 spin-off for parents, DAPA, are basically identical, said Stephen Legomsky, a law professor at Washington University and former chief counsel to U.S. Citizenship and Immigration Services.

“It’s hard for me to think of any ground striking DAPA that wouldn’t apply to DACA,” he said. “So why not challenge DACA? They might have worried the court wouldn’t want to strike down such a popular program. So they think go after DAPA and if they win, then they have a nice precedent to go after DACA.”

See here and here for some background. There will be a ton of coverage of the arguments and the Justices’ reactions to them and all that, and I’ll post about that tomorrow. This is just a placeholder to remind you that today is the day for this, and what it’s all about as we wait.

UPDATE: The Trib has a nice comprehensive timeline of events in this case.

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