The fate of a plan to offer work permits to more than 4 million undocumented immigrants residing in the United States hangs in the balance, as Supreme Court justices prepare to hear the last major case of President Barack Obama's presidency on Monday.
In the case – United States v. Texas – lawyers will defend the president's plan against accusations of unilateral overreach.
The House of Representatives, Texas and 25 other states are mounting challenges to Obama's initiative, which was part of a November 2014 executive order to spare millions of unauthorized immigrants from deportation. The states which are challenging Obama have governments which are Republican-dominated — an indication of just how politically polarizing the issue of immigration has become.
"Fundamentally, we don't think the president has the statutory or constitutional authority to issue these executive actions," Texas Attorney General Ken Paxton told the Associated Press.
The president's executive action was meant to bypass roadblocks put up by the Republican-controlled Congress, but was blocked again by a federal court in February 2015. Obama then took the issue to the highest legislative body, the Supreme Court.
Obama's plan seeks to help parents who have kids born in the US but are not citizens themselves, protecting them from deportation through a process called "Deferred Action for Parents of Americans and Lawful Permanent Residents" (DAPA). His executive action also expands "Deferred Action for Childhood Arrivals" (DACA) to provide benefits to non-citizens who arrived in the US when they were children.
"We'll bring more undocumented immigrants out of the shadows so they can play by the rules, pay their full share of taxes, pass a criminal background check, and get right with the law," Obama said after the programs were announced.
While neither DAPA or DACA grants US citizenship automatically, the order would put undocumented immigrants on the path to legitimacy and bring millions out of the shadows. They could go about their daily lives without fearing deportation, could get a job, have access to public benefits, and get a driving license.
"It's not permanent status, not a green card, not a path to citizenship. It doesn't get you a ticket into a voting booth. At best, it's a tolerated presence," Angela Maria Kelley, an immigration expert at the Center for American Progress told AP.
Among the potential beneficiaries of the new initiative is Teresa Garcia, from Mexico originally, who now lives on the outskirts of Seattle. She has lived in the US illegally for the last 14 years after her tourist visa expired in 2002. Her 11-year-old daughter who was born here is an American citizen.
"That's why I come, for the opportunity for the children and because it is much safer here," Garcia told AP. She currently volunteers in schools teaching Spanish to children and providing translation between parents and teachers. She has had to turn down offers of a paying job with the school system. If Obama's plan goes ahead, she is eager to enjoy some of its benefits.
But immigration is a fraught and political hot button issue — increasingly so — as Republican presidential frontrunner Donald Trump has made building a wall along the Mexican border the centerpiece of his campaign platform, and has played on some Americans' feelings of economic and national insecurity. Trump has also vowed to deport the 11 million people estimated to be living in the US illegally.
For those in favor of such proposals, the absence of conservative Justice Antonin Scalia will loom large. Scalia, who died in February, would have almost almost certainly voted to strike down Obama's proposal. But without his vote, there is a very real possibility that the remaining eight justices will arrive at a 4-4 split — which would preserve Obama's order.
A recent Pew Research poll found that opinions on immigration have become increasingly divided along party lines. For over 20 years, Pew has asked people whether immigrants in the US "strengthen our country because of their hard work and talents," or whether they are a "burden on our country because they take our jobs, housing and health care."
Between 1994 and 2005, Pew noted, Republicans' and Democrats' views on immigration "tracked one another closely." But around 2006, those views began diverging. Since then, the numbers of Democrats and Democratic-leaning independents in favor of immigration have increased from 49 percent to 78 percent. Meanwhile, only 35 percent of Republicans and Republican leaning independents shared this view in 2006 – which rose by just one percent.
But beyond immigration, there's another issue at stake in United States v. Texas. Amanda Frost, a law professor at American University, wrote on the SCOTUS blog that the justices will have to first and foremost determine when and whether states actually have the standing to sue the US federal government.
This issue, as Frost points out, has cropped up often over the last decade, in many cases, including but not limited to the Affordable Care Act, federal disaster relief, and federal environmental policies.
"This case gives the court an opportunity to settle questions about the role of the states (and thus the courts) in monitoring federal law policies," Frost writes. "Texas's standing to sue is thus a major and unresolved question that the Court must address even before it reaches the legality of the president's deferred-action initiatives."
Solicitor General Donald Verrilli, who is defending the Obama administration, is arguing that granting states the permission to sue the federal government would "upend the constitutional design." Verrilli also argues that the "Constitution reserves exclusive authority for the National Government to make and enforce immigration policy."
The decision in United States v Texas is expected in late June.