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Supreme Court Appears Divided On Obama Immigration Actions

ROBERT SIEGEL, HOST:

The U.S. Supreme Court seemed split today as it considered the fate of President Obama's executive action on immigration. The policy blocked last year by a lower court would defer deportation for as many as 4 million people in the U.S. illegally. It applies only to those who came here before 2010 and are parents of American citizens or permanent legal residents. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Outside the Supreme Court building, the sidewalk was crowded with immigrants and their children. Among those who came to the microphone was 6-year-old Sophie.

SOPHIE: I asked the judges to protect us children and all immigrants. Give me the opportunity to grow with my parents.

TOTENBERG: Under the president's executive action, her parents could be temporarily shielded from deportation and, if eligible, could qualify for a temporary work permit to support the family. Twenty-six mainly Republican states led by Texas are challenging the president's action. Texas Attorney General Ken Paxton summed up their position this way.

KEN PAXTON: If we allow a president, whether it's this president or a future president, to make changes in the law without congressional approval, then we will end up with a perverted Constitution.

TOTENBERG: Inside the Supreme Court chamber, Solicitor General Donald Verrilli, representing the administration, noted that over the last half century, other presidents from both parties have executed similar programs. President George H.W. Bush, for instance, issued an order protecting a projected 1.5 million people from deportation.

No president, however has sought to shield as many as 4 million. And that fact stuck in the craw of the court's four conservatives. Justice Kennedy, who has previously supported broad presidential authority in deciding who should be deported, said of this case, what we're doing is defining the limits of discretion, and that sounds to me like a Legislative, not an Executive, act. But Justice Sotomayor noted that the Bush executive action of 1990 protected 40 percent of those here illegally while the Obama order a quarter century later would protect only 35 percent.

The administration's Verrilli stressed that the Obama action does not grant any illegal immigrant legal status. Rather, he said, it acknowledges the reality that a certain group - the parents of American citizen children - are the lowest priority for deportation, and under Federal law, he said, the executive may grant temporary work permits to people in such a designated category.

Justice Alito, exasperated - how is it possible that you can legally work even though you have no lawful status? Verrilli replied that if the court undermines the regime that has existed for decades, it would wreak havoc with our immigration system. For example, he noted, 3.5 million people since 2008 have applied for an adjustment to their immigration status, and we allow them to work while they do that. Justice Kagan - could we get rid of the term lawful status as applied to these parents? Absolutely, replied Verrilli. If the court thinks its a problem, put a red pencil through it. Its the flea on the tail of the dog.

Much of today's argument focused, though, on the technical question of whether Texas has the right to be in court at all since the administration contends the state has not suffered any concrete harm that would give it the required standing to go to court. Texas Solicitor General Scott Keller argued that since the state subsidizes the cost of issuing driver's licenses, it would be stuck subsidizing many more such licenses for the newly protected immigrants. The administration's Verrilli countered that this was a problem of the state's own making, that it doesn't have to subsidize licenses for these undocumented immigrants.

Chief Justice Roberts all but sneered at that suggestion. Texas has, what seems to me, to be a perfectly legitimate policy of making driver's licenses available to people who are unlawfully here. If Texas didn't give driver's licenses to a group you say is lawfully here, under your policy, you would sue them, wouldn't you?

When all was said and done, it looked very much as though the court, down to eight members because of Justice Antonin Scalia's death, could be tied. A tie vote under the court's rules would automatically uphold the lower court's decision, meaning that the Obama plan would be dead. After the election, of course, a Democratic president might revive the plan. A Republican president might cut back dramatically on tolerance for immigration, and the next Supreme Court justice to be confirmed would cast the deciding vote. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.