“I’m Going to Do this When it Makes no Sense,” the Court hears Oral Argument in United States v. Texas, by Angela Morrison

Last week’s oral argument in United States v. Texas underscored the political motivations behind the challenge to the Obama administration’s Deferred Action for Parents of American and Legal Resident children program (DAPA). On one side is President Obama, who had promised immigration reform to his supporters. On the other side is Texas–joined by 26 other states–which seeks to block the President from implementing the program. And, all of this comes in the context of over a decade of congressional inaction on immigration reform. Unfortunately, over 4.2 million children, whose parents would benefit from the program, bear the brunt of this political tug-of-war.


Congress has not passed meaningful immigration reform since 1996 when it passed the Illegal Immigration Reform and Immigrant Responsibility Act. And, it has not provided a means for noncitizens without authorization to regularize their status since the Reagan amnesty of 1986.

The Obama administration, which had promised immigration reform to advocates and tapped into the grassroots organizing skills of young immigration activists, was left without the promised reform leading up to the 2012 presidential election. Thus, in 2012, the President announced he would use the executive’s prosecutorial discretion to create a Deferred Action for Childhood Arrivals program (DACA). Under the program, noncitizens who are present in the United States without lawful status prior to the program’s announcement date, entered as children, had a clean criminal record, and graduated or were enrolled in a United States high school would received deferred action and work authorization for a two-year, renewable term.

After the House failed to pass the Senate’s comprehensive immigration reform bill in 2014, the Obama administration announced it would expand the DACA program. It got rid of the upper age limit for applicants (it was 31) and provided for a longer term of employment authorization, from two to three years. The administration also announced a program to provide deferred action to the parents of United States citizens and legal permanent residents—DAPA.

To be eligible for DAPA, an applicant would have to demonstrate three things:

  • She was the parent of a U.S. citizen or lawful permanent resident;
  • She had lived continuously in the U.S. since January 1, 2010;
  • She was present in the United States and did not have lawful immigration status on November 20, 2014 (when the program was announced); and
  • She did not fall within any of the categories of people who were removal priorities.

After the president announced expanded DACA and DAPA, Texas sought and received an injunction barring the program’s implementation, which injunction the Fifth Circuit subsequently affirmed.

The Argument

The four questions presented for review are whether the state(s) have Article III standing to assert a claim, whether the guidance is arbitrary and capricious, whether the guidance was subject to the Administrative Procedure Act’s notice and comment procedures, and whether the program violates the Constitution’s Take Care clause.

The primary focus of the argument was on whether Texas and the other states had Article III standing. Texas argued that it will suffer harm from the program because its rules for issuing driver’s licenses would require the state to issue drivers licenses to DAPA and DACA recipients. Arguing for Texas, Texas Assistant Attorney General Keller stated this would have “deep economic significance” because it would require the state to hire more workers and spend more money due to the increased numbers of license applicants.

Justice Sotomayor expressed some skepticism about the extent of the harm asking, “You know, you keep 
saying that, ‘deep economic significance.’ Those nearly 
11 million unauthorized aliens are here in the shadows. They are affecting the economy whether we want to or not. The answer is, if Congress really wanted not to have an economic impact, it would ­­ it would allot 
the amount of money necessary to deport them, but it hasn’t.” And, after asking Keller why Texas can’t just choose not to spend the money on hiring additional personnel and instead just make people wait while the state processes licenses, she further stated “Can we give you standing just on the basis of you saying, I’m going to do this when it makes no sense?”

When the Court shifted some of its focus to the merits, it mostly ignored the APA questions and asked about the President’s authority to create the program. In that regard, the advocates and the Justices focused on the term “lawfully present,” which appeared in the guidance outlining the program. Solicitor General Verrilli asserted that the term “lawfully present” did not mean DAPA or DACA recipients were “legally present” and that the administration could strike that term from the guidelines.

Justice Roberts queried both Keller and Erin Murphy, who argued on behalf of the House of Representatives (as amicus), whether striking “lawfully present” from the guidelines would take care of their concerns about the program. While Keller seemed to indicate that striking the term might take care of the problem so long as the program provided only deferred removal, Ms. Murphy argued the real problem was with deferred action because deferred action allows work authorization and social security retirement benefits. In response to both Keller and Ms. Murphy, the Justices raised the issue of administrative exhaustion. Justices Kagan and Sotomayor asked the advocates why they did not challenge the 1986 regulations, which provided that INS could issue work authorization to deferred action recipients.

In rebuttal, Verrilli moved the Court back to the issue that seemed to be most concerning to Justice Breyer, and may have the most traction with Justices Roberts and Kennedy. He argued that recognizing standing in this case would lead to states being able to challenge any administrative policy with which the state does not agree. As an example, Verrilli noted that Texas is currently challenging the admission of Syrian refugees.

If the Court reaches the merits, it seems likely it will determine that only the words “lawfully present” and the issuance of work authorization exceeded the scope of the President’s authority. This would preserve the status quo, which as further explained below, harms millions of children. Thus, a better result would be for the Court to determine the states have no standing to challenge the program.

Why the Outcome Matters, Not just to 4.2 million children, but also to U.S. Society as a Whole

Caught in the middle of this political battle are the over 4 million children, whose parents are currently unauthorized but would be eligible for the DAPA program. Texas’ opposition to their parents receiving work authorization, in particular, makes little sense. First, given that most of the children of DAPA eligible applicants are United States Citizens and so eligible for benefits like SNAP, TANF, or Medicaid, it would make more sense to let their parents work to reduce the children’s need for public benefits program.

Second, the parent’s ability to work legally in the United States would make a tremendous difference to the children’s quality of life. Because their parents are currently unauthorized and may not work legally, the children experience higher rates of poverty, lower rates of educational attainment, linguistic isolation, lower English proficiency, and reduced socioeconomic progress than children whose parents have immigration status or citizenship.

The Court already highlighted the inconsistency in Texas’ position in Plyler v. Doe over three decades ago. In Plyler, the Court determined that Texas violated the Equal Protection clause when it barred the children of unauthorized immigrants from enrolling in school. The Court discounted Texas’ argument that it appropriately had singled out unauthorized children because their unauthorized status meant that they would not contribute to the state:

The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State’s borders. . . . It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.

Just as it made no sense in 1981 to force children to bear the brunt of our immigration policy, it makes no sense now. Thus, Justice Sotomayor’s summary of Texas’ alleged harm, that basically, “I’m going to do this when it makes no sense,” is also applicable to the position taken by those who oppose immigration reform at all costs, even that of children’s well-being. It’s senseless.

Angela Morrison

Professor Morrison was previously the Legal Director of the Nevada Immigrant Resource Project (NIRP) at the William S. Boyd School of Law. As director of NIRP, she conducted outreach on immigration-related issues to community partners, immigrant communities, and governmental organizations. Prior to directing NIRP, Professor Morrison worked for the U.S. Equal Employment Opportunity Commission (EEOC) where she was the first EEOC trial attorney in Las Vegas. Before joining the EEOC, Professor Morrison was a law clerk for the Honorable Judge Philip M. Pro, United States District Court for the District of Nevada. She graduated from the William S. Boyd School of Law where she was the editor-in-chief of the Nevada Law Journal and was a student attorney in the Immigration Clinic. Professor Morrison teaches Lawyering Process, Immigration Law and Employment Discrimination.