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The DAPA arguments at SCOTUS

Hard to say how this will go.

A shorthanded Supreme Court heard a Texas-led challenge against President Barack Obama’s 2014 immigration plan Monday with sharp questions about whether the state could bring the case to begin with and if the president had overstepped.

The eight justices appeared largely divided with the four liberal justices asking questions that seemed to indicate it supported the president’s plan while the four conservative justices questioned the limits of his executive authority.


Chief Justice John Roberts is considered a contender to side with the four liberal judges in deciding that Texas isn’t able to bring the suit in the first place because it can’t prove it will suffer as a result of the program, necessary for it to sue in federal court.

Texas said it would lose money if it is required to provide driver’s licenses to the nearly 600,000 immigrants who would be eligible for a provisional work permit through the president’s plan. The state subsidizes the document by about $130.

But U.S. Solicitor General Donald Verrilli argued Monday that Texas could simply change its policy and not offer these immigrants licenses or choose not to offset the cost of the documents.

Roberts, who has taken a narrow position on so-called standing in the past, noted that not granting licenses to certain immigrants with work authorization when others with a similar status have them could be considered discriminatory, putting Texas in a tough spot.

He asked Verrilli whether the injury Texas argues it might suffer is similar to a 2007 environmental case in which Massachusetts sued the Environmental Protection Agency about its refusal to regulate vehicle emissions linked to climate change.

“There wasn’t a way for Massachusetts to avoid the effects of climate change but there is a way here,” Verrilli said, because Texas isn’t required to discount the license.

Massachusetts had argued that rising seawater, a result of global warming, would erode its coastline and hurt the state, giving it sufficient claim to sue the federal government. The state prevailed but Roberts led the court’s conservative dissent, arguing Massachusetts could not prove it was hurt by the government’s policy.

Monday Justice Stephen Breyer noted that the state’s main argument that it would be harmed is that it would lose money.

“We can’t just let you sue on the basis that you as a taxpayer would pay more money,” he said. “Because if we do, taxpayers from all over the country would sue” about their unhappiness with any number of federal programs.

See here for more. TPM‘s report on the oral arguments sounded a pessimistic note for the feds, while Daily Kos and Think Progress were more buoyant. The key question seems to be whether the states have standing to sue. If SCOTUS rules that they don’t, then this is over and the program can be implemented immediately, though at this point it’s unclear how much effect it may have, given its uncertainty past November. If they do have standing, then the case goes back to the district court for a hearing on the merits (which won’t go well for the feds, given the original judge and his ruling to suspend the program), and nothing will get resolved for several years. That may also open the floodgates for other litigation like this. A 4-4 tie is a win for the plaintiffs, since the lower courts ruled in their favor. The Obama administration needs at least one conservative judge to buy into its arguments about standing. The Trib, SCOTUSBlog, Daily Kos, Think Progress, and Trail Blazers have more.

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