Justice Sonia Sotomayor clashed with the solicitor general of Texas on Monday as America’s politically charged immigration debate came to the US Supreme Court.
The court heard arguments over whether to revive Barack Obama’s plan to spare roughly 4 million undocumented immigrants from deportation that would tear many families apart. His executive action was challenged by 26 states, all of which are led by Republican governors.
Scott Keller, solicitor general of Texas, a post formerly held by the Republican presidential candidate Ted Cruz, had only got into the second sentence of a fierce condemnation of Obama’s programme when he was abruptly challenged by Sotomayor.
“Dapa [Deferred Action for Parents of Americans] is an unprecedented unlawful assertion of executive power,” he began. “Dapa would be one of the largest changes in immigration policy in our nation’s history …”
Sotomayor interrupted bluntly: “How can you say that? I mean, we have the Fairness Act that happened in 1990. It granted basically the same thing, deferred action and work authorization, to 1.5 million people out of 4 million. That was 40% of the immigrant population of the time was affected. Here, the best estimate is that only 35% are affected.”
In an unusually lengthy joust back and forth, Keller asserted: “Congress has to grant the statutory authority first for the executive to be able to act. And to do so, on a question that’s of this deep economic significance, it would have to do so expressly.”
Sotomayor shot back: “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 allot the amount of money necessary to deport them, but it hasn’t.”
Sotomayor and other liberal-leaning justices continued to grill Keller, just as conservative members of the bench had asked tough questions of the US solicitor general, Donald Verrilli, acting for the government. Their questions on Monday gave some clues as to their leaning but were inconclusive.
Outside the Supreme Court, more than a thousand demonstrators gathered to argue that Obama’s program should be upheld to prevent families being separated. Among them were Sayra Hernandez, 16, her sister Isabella, 11, and their 39-year-old mother, Susanna Bernabe. Sayra and Susanna face deportation on 29 April, potentially leaving US-born Isabella behind.
“It’s possible that my sister can be left here alone without her dad, mother and sister,” said Sayra, originally from Mexico. “We’ve already been separated from my dad. He’s committed no crime, nothing, he’s clean, and they deported him unfairly in 2010.”
GOPUSA Editor’s Note: It’s clear where the “journalist” lines up for this story. Everything is slanted toward the liberal perspective, and using examples of families being separated is just another way to get people to forget about the law. If these families abandon their children, that’s their own doing. And the story later quotes a transgender “woman”? What does that have to do with anything??
Sayra has been in the US from kindergarten to fifth grade but the family is forced to live in the shadows and cannot get a driver’s license. “It’s really hard not being able to have a car, not being able even to work because we can’t work since we’re illegal. I really want to work, I really want to be able to do something in life.
“Yes, it’s rules but we’re all human beings. I think it’s sometimes unfair. We’re not all bad people.”
The case has taken on an extra political dimension in an election year in which Republican frontrunner Donald Trump has called for all 11 million undocumented immigrants to be deported and a wall to be built along the Mexican border. Even Obama’s administration, which claims to be setting records for removals in a year – about 440,000 in 2013 – has been criticised as too harsh by fellow Democrats Hillary Clinton and Bernie Sanders.
Obama took the action after House Republicans killed bipartisan legislation, billed as the biggest overhaul of US immigration laws in decades and providing a path to citizenship for illegal immigrants, that was passed by the Senate in 2013.
Shortly before the plan was to take effect last year, a federal judge in Texas blocked it after the Republican-governed states filed suit. California, which has a big immigrant population but is led by a Democratic governor, was notably not among them. The fifth US circuit court of appeals upheld that decision in November.
The Supreme Court is evenly divided, with four liberals and four conservatives, following the death in February of conservative Antonin Scalia. That raises the possibility of a 4-4 split that would leave in place a lower-court ruling that threw out the president’s executive action.
The states have raised concerns that deferred action opens the way for immigrants to gain authorization to work, eligibility for benefits and, in particular focus, obtain driver’s licenses with the financial burden that would entail in a state such as Texas.
Verrilli asserted the president’s authority to set priorities for immigration enforcement. But Justice Anthony Kennedy questioned whether the president can defer deportations for millions of people without congressional authorization, saying “that is a legislative task, not an executive task”.
He added: “It’s as if the president is defining the policy and the Congress is executing it. That’s just upside down.”
Verrilli argued that the state of Texas should not be allowed to challenge the president’s actions by claiming it would cost the state money to give driver’s licences to affected immigrants. He suggested that Texas could change its law to deny driver’s licences to the immigrants. Roberts responded: “You would sue them instantly.”
Keller of Texas described it as a “catch-22” that would require either millions of dollars or a change in the law. “The bottom line is if we’re going to issue more driver’s licences, we’re going to have to spend more money.”
But Justice Stephen Breyer wondered whether this was really a case about money alone. “Looking at the briefs, awful lot of briefs, senators, both sides. Awful lot of briefs from states, both sides. Members of Congress. Why? Because this has tremendous political valence. Keep that in mind.”
He also raised the question of whether Texas’s action could set a dangerous precedent whereby states could sue the federal government over countless other issues, resulting in a transfer of power from the executive to unelected judges.
Justice Ruth Bader Ginsburg, meanwhile, wondered “how much of a factor is the reality” that Congress’s appropriation of $6bn this year is only enough to deport a small portion of the 11 undocumented aliens.
But Erin Murphy, arguing for the House of Representatives, said bluntly: “We don’t believe the executive has the power to place this class of individuals into deferred action status.”
The arguments lasted for 90 minutes. Back outside the white marble court, people marched with banners that said “Keep Families Together” and chanted “We’re home and here to stay, undocumented and unafraid” and “ sí se puede ” – Spanish for “yes we can”, the optimistic slogan used by Obama during his 2008 election campaign. A mariachi band lightened the mood. Some had been camping in front of the court since Friday night.
Civil rights activist Dolores Huerta, co-founder of the United Farm Workers, said: “This is highly important. The United States is one of the few countries in the world settled by immigrants. We are asking the supreme court to affirm and verify the policies we’ve had in the past.”
She added: “Breaking up families is such a cruel thing to do. This is a terrible dread they live with every day: parents being separated from their parents every day.”
The noise of the election campaign has been impossible to ignore. Huerta commented: “It’s tapping into the deep-seated racism we have in the United States. It’s not been resolved or cured.”
Catalina Velasquez, a 28-year-old transgender woman who emigrated to the US from Colombia with her family, said: “The stakes are high because this is about people’s right to breathe and walk and have a fruitful life in the United States and to provide for themselves. It is about the US making a statement that it recognises humanity outside a birth certificate.”
Dolores Huerta, co-founder of the United Farm Workers
Julissa Arce, 33, a Mexican-born US citizen, said: “I think it’s one of the most important cases in our lifetime. What’s really at stake today is the future of our country. The people really benefiting from this decision are US citizen children, who are the future of our country. So how can we say we care about our future and leave these kids out to dry?”
Arce moved to Texas aged 11 and lived undocumented until gaining citizenship in 2014. But her sister Elisa, 43, remains undocumented. “She has four children who are US citizens who have to be afraid that their mum might not come home today or that a knock at the door might mean she gets taken away,” said Arce, who now lives in Los Angeles.
“Just even getting behind the wheel of a car, she’s ‘breaking the law’. Imagine having to drive every single day, going to pick up her kids from school, she’s afraid. Sometimes she’ll walk to pick up her kids from school because she doesn’t want to get in a car.
“Not having a driver’s licence also means she doesn’t have opportunities. She owns a food truck and just even getting a health department permit, I have to get it for her because she doesn’t have a driving licence to get it. So every aspect of her life is more difficult which means that every aspect of my nephews’ lives are more difficult.”
The Supreme Court’s ruling is due by the end of June.
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