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Supreme Court Divided on DAPA Case

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After oral arguments on Monday the eight Supreme Court Justices seem to be evenly split over the Deferred Action for Parents of Americans (DAPA) case. The court spent 90 minutes debating if Texas and the other 25 states have the right to sue over Pres. Obama’s executive amnesty and if so does DAPA, specifically the Administration’s plan to grant work permits and Social Security numbers to a class of illegal aliens, violate the constitution.

Chief Justice John Roberts and Justice Samuel Alito were concerned that the language of the executive action would grant illegal aliens “legal” status. “How is it possible to lawfully work in the United States without lawfully being in the United States,” Justice Alito asked. Chief Justice Roberts continued, “I mean, they’re lawfully present, and yet, they’re present in violation of the law?”

Justice Anthony Kennedy, who is usually the swing voter, argued that Pres. Obama overstepped his authority. “And that’s ­­the whole point, is that you’ve talked about discretion here. What we’re doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act. All of the cases,­­ the briefs go on for pages to the effect that the President has admitted a certain number of people and then Congress approves it. That seems to me to have it backwards. It’s as if ­­that the President is setting the policy and the Congress is executing it. That’s just upside down,” he said.

Justice Clarence Thomas also seemed to side with Texas and the states over the Obama administration.

Justice Ruth Bader Ginsburg made the argument that there are 11.3 million illegal aliens in the U.S. but Congress has only provided funds to deport around 4 million, so Pres. Obama is allowed to set priorities. Justice Sonia Sotomayor argued against the standing of Texas and the other states to challenge President Obama’s executive action saying this could set a precedent that would make it easier for states to attack any federal agency regulations they don’t like. Justice Elena Kagan and Justice Stephen Breyer also voiced their support for the administration’s position.

There are currently only eight Supreme Court justices after the death of Justice Antonin Scalia. If the final decision is split this would mean that the lower court’s injunction would be upheld, essentially ending DAPA.

 For more on other possible Supreme Court decisions read Chris Chmielenski’s blog here.
DAPA was put on hold last February after Texas and 25 other states filed a lawsuit against the executive action. The injunction has been upheld by the Fifth Circuit Court that said DAPA would affect more than just immigration enforcement but would actually change the status of illegal aliens.

DAPA would provide approximately 5 million illegal aliens access to work permits and social security cards, which would qualify them for other state and federal benefits including welfare, essentially granting them legal status.

The Supreme Court is set to give its final decision on June 28. 

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