As arguments begin Monday (April 18, 2016) before the Supreme Court in a closely-watched case ultimately challenging President Obama’s immigration policy, an eight-member court is trying to determine whether a state has legal standing to bring a suit against the federal government at all – boiling down to an argument over drivers’ licenses, a legal expert on immigration law said.
In U.S. v. Texas, the Lone Star State plus 25 other states are challenging the legality of the president’s Deferred Action for Parents of Americans (DAPA), which seeks to delay the deportation of nearly 5 million undocumented immigrants in the country, said Shana Tabak, a visiting assistant professor of law and global studies at Georgia State University in Atlanta.
Parents of children legally entitled to remain in the United States would be granted the right to stay in the U.S. for a period of time, deferring deportation. They would not gain U.S. citizenship, but they would have the right to seek employment and benefits provided by states – including drivers’ licenses.
“The cost that states incur in providing drivers’ licenses to DAPA beneficiaries may prove critical in this case,” Tabak explained. “Standing, under long-held law at the court, exists only if a party can demonstrate that there exists actual harm or injury, or ‘case or controversy’ as required by the Constitution.”
She said that Texas is arguing that, at a cost of $130 per drivers’ license, the state has standing to bring the claim against the federal government. If the Court rules in favor of the states suing the government, it will open the path toward the Court more directly addressing the substantive question of whether the president has the authority to issue executive orders creating immigration policies barring deportation of certain undocumented immigrants.A ruling against the states would mean a lower court’s injunction of DAPA would end, allowing the federal government to start processing applications under the immigration policy, Tabak said.
So, how likely is it that the court will rule in Texas’ favor?
“In previous cases that have set precedent on the issue of standing, conservative justices have traditionally narrowed the scope of when standing exists,” Tabak said. “Conservatives in particular have raised the legal bar to reach standing, which makes it unlikely that the State’s expenditure for drivers’ licenses will reach that bar.
“If the conservative justices follow that reasoning, they would then find that Texas has no standing to bring suit,” she said. “The four liberal justices will also agree, thereby avoiding a 4-to-4 split on the court.”
But if conservative justices determine that Texas has standing, a 4-4 split would affirm the Fifth Circuit Court of Appeals’ injunction – blocking the executive order’s implementation, and allowing a lower district court to proceed with arguments over the merits of the case, Tabak said.
“If that occurs, any substantive decision on the legality of DAPA and DACA [Deferred Action for Childhood Arrivals] will most likely be delayed until a new president takes office in 2017,” she added.
Tabak, an expert in international law, asylum and refugee law, and human rights issues, has worked with immigrant and human rights organizations in the U.S., Latin America, and the Middle East.
Her immigration and refugee experience includes handling cases on behalf of immigrant women and girls fleeing gender-based violence at the Tahirih Justice Center in Washington, D.C., and on behalf of Iraqi refugees while working with the U.N. High Commissioner for Refugees in Amman, Jordan.
For more information about Tabak, visit http://law.gsu.edu/profile/shana-tabak/. For more information about her publications, visit http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=796935.
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