United States v. Texas

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The U.S. Supreme Court heard oral arguments in the case of United States v. Texas, a challenge to President Obama’s 2014 executive action on immigration. The case concerns the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policies. Danny Ortega, attorney and past chairman for the National Council of La Raza and ASU Law Professor Paul Bender discuss the case.

Jose Cardenas: Good evening. I'm Jose Cardenas. We'll talk about this week's U.S. Supreme Court hearing on President Obama's deferred action policy for certain undocumented immigrants and a discussion about border violence, immigration and migration issues at the U.S.-Mexico border. We'll get to know the new executive director of the Congressman Ed pastor center for politics and public service. All this coming up straight ahead on "Horizonte." "Horizonte" is made possible by contributions from the friends of Arizona PBS, members of your PBS station. Thank you.

Jose Cardenas: Monday the U.S. Supreme Court heard arguments in United States versus Texas. The Obama administration is looking to offer temporary protection from deportation to millions of undocumented immigrants. Joining me to talk about this is Danny Ortega, attorney and past chairman for the national council of La Raza and ASU law professor Paul Bender. Thank you both for joining us. Danny, give us a thumbnail sketch of what the case is all about and what was at issue before the Supreme Court.

Danny Ortega: First you have to understand it involves by acronym two different programs, the most important of which is called DACA, and DAPA. They are both deferred action in which the president in his discretion determined that those people who were either under DACA, students that met certain requirements should be free of deportation for a certain period of time. Then DAPA is the same for parents of children who are either U.S. citizens or legal residents. In the president's words, from discretionary standpoint folks that should not be subject to deportation under this executive order. The biggest of which is DAPA. It could affect potentially 3.7 million. Under DACA, close to seven to 800,000 people who have been approved, received work permits, drivers licenses and the opportunity to be free of deportation.

Jose Cardenas: Basically the expansion of an existing program.

Danny Ortega: Exactly. When the president announced an expansion of DACA, there were states who were opposed to the president's initiative, and challenged it in court in Texas. They challenged it in large part on the fact that if folks were given the undocumented were given lawful presence that that would also give them the opportunity to work but more importantly that we require the state of Texas to give them driver's licenses. Somehow they felt that the cost of giving all of these people at least in the state of Texas, right, driver's licenses would be a great cost to the state. They felt that because of that, in addition to other things, okay, whether they followed the APA, take care clause, the constitution, the most important of which was the impact it would have on the state of Texas because of the issuing of driver's licenses, et cetera, et cetera.

Jose Cardenas: Paul, on that last issue Danny mentioned, the court asked the parties to brief whether the president what's taking care to enforce the constitution. No mention of that at all.

Paul Bender: Very little mention of it in the briefs.

Jose Cardenas: On the first issue about the impact that had to do with standing.

Paul Bender: Yes.

Jose Cardenas: Had a rein --

Paul Bender: Driver's license stuff has to do withstanding. The states need to have some tangible impact on them in order to give them standing. They said, well, if you let them stay here and give them legal status then we have to give them driver's licenses and that will cost money. It's not clear it will cost money. In fact why is it going to cost you money? Oh, there's going to be a lot of people that want driver's licenses. She said, so what, let them stand in line. You don't have to hire new people to do that. Their case is very weak but the lower court found it would cost them something, so the issue is whether that cost gives them standing to challenge the whole program. And if it does, the lower court says then the court gets to the merits of whether the program is legal or not.

Jose Cardenas: The issue there is, at least one of the issues, that was raised was whether he followed the right procedures to implement this.

Paul Bender: That did not play a big role in the oral arguments. The main argument, main argument is outstanding. I would say two-thirds, three-quarters of the argument is the standing issue. Every time they got off on the merits they got back to standing. I have a feeling that will be the main issue before the court and most likely thing to happen is that the court will say there's no standing and that will be the ends of the lawsuit and the president's program can go into effect.

Danny Ortega: Common use of the word standing? Do they have the right to challenge it simply because they are going to have a financial impact?

Jose Cardenas: Whether there's enough proof that that would happen.

Paul Bender: The government's main argument is there's no impact except what you want to let happen because you don't have to give them driver's licenses. That's your choice. The federal government is not making you do that. They are just saying they can stay here. It's up to Texas whether it wants to give them driver's licenses. If you don't, then don't. To which chief justice Roberts said if you don't give them driver's licenses you'll sue them. That seems to me to be the right answer. That's why I think that standing will be the reason the court decides the case because that giving driver's licenses is a matter of state law. If they don't want to give them driver's licenses somebody will make a claim that's unconstitutional, discriminating against people the federal government --

Danny Ortega: Which is what happened in Arizona.

Danny Ortega: Here you have the state of Arizona having to give driver's licenses to the dreamers under DACA. The court having found it had discriminatory effect and there was animus that was involved in failing to do so. Here we have the court saying you don't have to give them driver's licenses. Oh, the state of Arizona fought that issue and the courts told them they had to. On the one hand it was good for us in Arizona but we could give dreamer's driver's licenses. In this case it works against the idea that they don't have to give them driver's licenses.

Jose Cardenas: To the extent there was discussion of the merits, the challenge was to exercise the president's discretion but other presidents have done this.
Danny Ortega: 39 times presidents have exercised that type of discretion. I think what's interesting discussion we had earlier is is there a limit to that discretion? A numerical limit? If they ever get to the merits.

Danny Ortega: The real issue is whether there is a numerical limit.

Paul Bender: The justices who are in favor of the president's program got the Attorney General of Texas to agree that if the discretion were exercised person by person, there would be nothing wrong with it even if he exercised it 4 million times. They said, well, what's the problem? Oh, the problem is he's made a declaration of status that applies to a lot of people. What difference does status make? We have to give them driver's licenses to which the government said you don't have to give them driver's licenses. If we sue or they sue you can be then give reasons why you're not doing it that seems to me the sensible thing. The state is trying to predict that issues will come, speculating about what's going to happen. I think that falls apart and so probably the court will end up saying that's too much speculation for us. Let the president go ahead with his program. If it's a problem for Texas let them do what they have to do to defend themselves.

Jose Cardenas: Last question, Danny, how do you think it will come out there speculation it will be a 4-4 vote.

Danny Ortega: Bottom line it's going to be decided on the issue of standing. If the court deals with this on that basis alone I think it will be a win for the United States. You know -- we hope for 5-3 but it could be greater than. That it could potentially be unanimous.

Paul Bender: If they give the state standing they are opening up a possibility of an enormous amount of litigation. The federal government does a lot of things that cost the state money indirectly. If you're going to let states challenge every federal action because there's an indirect financial impact on the states, everything the federal government does that the states don't like will be subject to litigation and I think the court will not like to set up that kind of ruling. The easiest thing to say is you don't have any standing. If there's a real problem it can be faced later. You're just speculating.

Jose Cardenas: This will be the last question. Danny, there was a lot of talk about the politics of this and timing. Do you think we'll get a decision before the November election?

Danny Ortega: Oh, I would think that -- well, if it's 4-4 the answer is no. If the majority goes with they don't have standing we'll have one by June, and the federal government is absolutely ready today to start the program. They were ready back when it was filed over a year ago. So I think that if they rule in our favor it's going to go.

Jose Cardenas: We may be back here talking about the impact on the election.
Paul Bender: I'm sorry, even if it's 4-4 that will happen before the election.

Jose Cardenas: We'll have a decision. [Speaking simultaneously]

Jose Cardenas: Quite interesting. Thank you for joining us on "Horizonte."

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Danny Ortega, Attorney and Past Chairman for the National Council of La Raza, Paul Bender, ASU Law Professor

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