WASHINGTON - An hour before oral arguments even began in U.S. v. Texas, a major immigration policy/executive overreach case, hundreds of immigration rights activists began demonstrating Monday in front of the U.S. Supreme Court.
Multiple groups were present, each wearing distinctive T-shirts so members knew where to gather. Carrying signs that said things like "Keep Families Together" and "We are Texas Families," they chanted "Yes, we can" in English and Spanish.
"We're here to remind the Supreme Court that millions of families are watching," shouted one speaker.
Frank Barragan, an organizer with the Alabama Coalition for Immigrant Justice, said people could just as easily have been across the street, protesting at the U.S. Capitol, where Congress has long failed to take action on immigration reform.
But the Supreme Court "is where they're arguing the pros and cons today," Barragan said, so that's where 60 members of the Alabama group gathered in the hot sun.
"It seems like we're protesting, but we're really here in support of the president," he said.
Following a failed reform effort in the Senate in 2014, President Barack Obama took executive action on immigration, directing the U.S. Department of Homeland Security to create new "deferred action" program that indicated undocumented immigrants who had no criminal record and had children who were U.S. citizens would be the lowest priority for deportation proceedings.
The move, which affected more than 4 million illegal immigrants, also authorized them to work in the United States and to receive certain public benefits. A similar program for illegal immigrants who arrived in the U.S. when they were children was expanded at the same time.
Obama said the intent was to keep families together and allow workers "to come out of the shadows," so they had access to jobs where they weren't exploited by employers.
However, Texas and 25 other states - including Idaho - sued, saying the president exceeded his authority and strayed into the policy-making area reserved to Congress.
"At its core this case is about the defense of the rule of law and respect for the separation of powers articulated in the U.S. Constitution," Idaho Attorney General Lawrence Wasden said. "The president's action overrides our system of checks and balances and enables a president to authorize that a federal law be ignored and replaced with an executive order."
In court filings, U.S. Solicitor General Donald Verrilli Jr. said the president's action was simply an example of "prosecutorial discretion," wherein the executive branch prioritizes its enforcement efforts in response to limited resources.
While there are about 11 million illegal immigrants nationwide, Verrilli noted, "Congress has appropriated the funds to remove only a fraction of them in any given year." Consequently, the Department of Homeland Security focuses its deportation efforts on criminals and more recent immigrants, rather than parents and those who have lived in America since they were kids.
The president's executive order did not confer legal status on any of the undocumented workers, he added.
A lower court ruled in favor of the states, saying "prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits." It also approved a preliminary injunction that put Obama's executive action on hold.
During oral arguments Monday, the justices began questioning Verrilli almost immediately and didn't let up for 30 minutes.
"Couldn't the government simply give (the undocumented immigrants) identity cards that say 'low priority'?" asked Justice Ruth Bader Ginsberg.
"That's precisely what deferred action is," Verrilli replied. "It's official notification that you're low priority (for deportation)."
Texas Solicitor General Scott Keller took exception to that, saying the president's executive order "goes far beyond enforcement discretion or forbearance from removal (deportation)."
By giving undocumented immigrations authorization to work in the U.S. and apply for public benefits, he said, Obama imposed additional costs on the states and effectively sidestepped Congress' intent.
In response to a question from Justice Sonia Sotomayor, for example, Keller noted that in 1986 and again in 1996, Congress "restricted work authorization and benefits as an alternative mechanism to enforcing immigration law ... Congress put forward those barriers to work and benefits precisely to deter unlawful immigration. What the (president) is trying to do here is to flout that determination."
The justices also grilled Keller during his 30-minute presentation, but not quite as thoroughly as they did Verrilli. In addition to the constitutionality of Obama's action, a major question was whether the states even had standing to sue the administration.
A ruling in the case is expected later this summer.
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