“So we have basically 10 million, nine hundred thousand people that cannot be deported because there’s not enough resources, correct?” Justice Sotomayor said.
“That’s correct,” Mr. Verrilli replied.
“So,” Justice Sotomayor concluded, “they are here whether we want them or not.”
The state challengers to Mr. Obama’s actions keep trying to obscure this blunt, obvious reality. But in a debate whose outcome will directly affect the lives of millions of people and their families, it must not be forgotten. Mr. Obama took his actions only after years of failure by Congress to enact meaningful immigration reform. As he said at the time, the moves were necessary but not a substitute for federal legislation.
Meanwhile, the challengers clung to a single two-word phrase — “lawfully present” — that the Obama administration used in a legal memo setting out its 2014 policy.
Mr. Verrilli admitted that the term has “caused a terrible amount of confusion,” but that it has a specific meaning in the context of immigration law. It does not confer a new legal status on millions of people, he said; it only indicates that their presence will be “tolerated” temporarily. He invited the court to strike those two words from the memo, saying it would change nothing.
Chief Justice Roberts and Justice Samuel Alito, sounding like two men aware of their imminent relegation to the court’s minority bloc, mocked the idea that words could have different meanings depending on context.
“Lawfully present does not mean you’re legally present in the United States,” Chief Justice Roberts said incredulously, before repeating the phrase for effect. “I’m sorry, that — just so I get that right.”
“I’m just talking about the English language. I just don’t understand it,” Justice Alito said. “How can it be lawful to work here but not lawful to be here?”
Mr. Verrilli responded gently, “let me just go through the reality here,” before explaining to Justice Alito that there are in fact millions of people who are already free to seek work authorization even though they are not in the United States legally.
In the end, the outcome of the case could turn on none of these issues, but rather on the preliminary question of standing: What gives Texas and the other 25 states the legal capacity to challenge Mr. Obama’s actions in the first place?
The court’s answer should be: nothing.
Texas claims it has that capacity, known as “standing,” because it has suffered a concrete injury — Mr. Obama’s executive actions mean that the state will bear the extra costs associated with providing driver’s licenses, which it already subsidizes heavily, to thousands of newly-protected immigrants. But no one is forcing Texas to provide licenses to these immigrants, or even to subsidize its licenses at all.
If states are allowed to run to the courts over any dispute they may have with the federal government, they will do so every day. “And before you know it,” Justice Stephen Breyer suggested, “power will be transferred from the President and the Congress, where power belongs, to a group of unelected judges.”
During his decade leading the court, Chief Justice Roberts has been a strong proponent of stricter standing rules. If he wants to avoid a chaotic 4-4 split in this extremely politicized case in the middle of a hotly contested election, the standing issue gives him an easy way out."
Taking Note - The Editorial Page Blog - The New York Times
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