Justice Sotomayor Tips Her Hand In DAPA Case Arguments

Ian Smith Immigration Reform Law Institute
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Those who got up extra early to get in line at the Supreme Court on Monday got to hear oral arguments for the biggest case of the court’s term: The Texas-led multi-state challenge against President Obama’s legacy-defining 2014 amnesty. Predictions that the eight-member panel will be split right down the middle with the program being kept frozen (but without a nation-wide precedent being created) went unfazed.

Also predictable was the standout performance of Justice Sonia Sotomayor, the first justice to use the euphemism “undocumented immigrant”in a court opinion. A former member of pro-amnesty organizations LatinoJustice and the National Council of La Raza, Sotomayor’s unusually numerous questions to counsel were filled with all the wafer-thin precedents and stock factoids so frequently offered up by the open-borders lobby. Clearly, she knows this territory well.

Early in the proceedings, Justice Kennedy described DAPA’s creation as “upside down” and “backwards” by purporting to allow the president to set broad-based policy which could then be either affirmed or reversed by Congress. This argument, that Congress can silently hand power to the Executive simply by its acquiescence or inaction, was made central in the Justice Department’s briefs and took up the greater part of the morning’s discussion. Justice Sotomayor appeared to agree with Kennedy’s characterization, but argued that wasn’t actually destructive to the government’s case.

Like open-borders advocates, Sotomayor tried to claim as precedent the Temporary Protected Status (TPS) program, which lets the Executive grant temporary amnesty to illegal aliens whose home countries have faced natural disaster. That program, however, was created by Congress and not via presidential decree like DAPA. In fact, Congress passed the TPS law in order to restrain the Executive, which had for years done on its own roughly the same thing TPS would do, through a program called Extended Voluntary Departure. Congress reacted by creating an “exclusive remedy” in the area of deportation relief based on nationality, which was intended to tether by statute the executive’s potentially boundless application of deportation relief.

Sotomayor also made the rather irrelevant assertion (but one DOJ raises throughout its briefs) that DAPA’s covered group, along with the remaining 8 million illegal aliens not covered, is essentially here “whether we want them or not” due to the Homeland Security department (DHS)’s not having the resources to deport them all at once. But as Texas Solicitor-General Scott Keller noted, the whole point of creating laws that prohibit illegal aliens from working is that they get discouraged from staying in the country illegally and return home on their own. If those laws were more stringently enforced (for instance, by mandating e-Verify nationally), much of DHS’s deportation capacity will basically become obsolete, freeing up billions of taxpayer dollars.

Sotomayor further offered the “Family Fairness” program as supposed precedent for DAPA, a 1990 deferred action program that Judge Stephen Higginson at the circuit-level also raised throughout his dissenting opinion against Texas. Again, Sotomayor glosses over glaring distinctions between DAPA and other “precedent”-programs. The Executive’s Family Fairness program grew out of an error in the 1986 legislative amnesty wherein a small number of the beneficiaries’ dependents (mostly children) were inexplicably left out — At one point, Sotomayor attempted to assert that the program covered 1.5 million illegal aliens, a figure created and often repeated by open-borders activists (the real figure’s 47,000). Congress sought to correct this mistake by providing for the class in the Immigration Act of 1990, but before the act could be implemented, members of the class, despite being here illegally, had their deportation proceedings stayed. As law professor Josh Blackman says, the program served as a “temporary bridge from one status to another,” with Congress granting the children legal status almost immediately after it was put in place.

With DAPA and DACA, however, those covered have no prospect of obtaining proper legal status. When Judge Beryl Howell of the D.C. District Court (an Obama-appointee just like Sotomayor and Higginson), raised Family Fairness in her dismissal of Arizona sheriff Joe Arpaio’s DACA-challenge, immigration law professor Peter Margulies noted that she “failed to acknowledge the distinction between discretion that acted as a bridge to legal status and discretion unmoored to status.” Deferring prosecution for a narrowly defined group whose change in status is all but inevitable is the kind of temporary and limited discretion that Congress arguably can give to the president. But deferring prosecution for millions (and giving them work permits) is what makes Obama’s amnesty completely unhinged and an absolute abdication of his duty to execute the laws of Congress.