A hundred New Jersey residents joined thousands of others outside the Supreme Court as the eight justices took up the legal challenge to President Obama’s executive order on immigration that’s designed to allow unauthorized immigrants to stay here if their children were brought here or born here. Absent was a comprehensive policy from Congress. President Obama invoked executive authority to impose reform back in 2014. Texas is representing 25 states that sued claiming that Obama overstepped his constitutional authority and that his reforms would impose an undue financial burden on them. The court must decide if the president’s action was legal and if Texas has legal standing to sue. New Jersey Senior Sen. Bob Menendez was there. Joining NJTV News Anchor Mary Alice Williams to break down the complex issues before the court is the Dean of Rutgers Law School in Newark Ronald Chen.
Williams: Can you break down the arguments that the court is tackling?
Chen: Well the first argument is a procedural one, actually, and that is that the state of Texas and the other states that challenge the president’s action do not have standing to bring the action. And if the court went that way, they would just send this case back down and not actually issue a ruling on the substantive merits and there are some that think that would be a convenient way for them to duck the issue.
Williams: And the standing means that there has to be a clear and present harm, existing harm to the states.
Chen: The state of Texas, for instance, actually has suffered some injury as a result of President Obama’s actions. Texas is arguing that their injury is that the cost of issuing drivers licenses to those covered under the order costs them money. And the response is then, well don’t issue them drivers licenses.
Williams: The other issue is whether the executive action itself was legal. Can you talk about that?
Chen: And that can be approached from any number of constitutional areas. The House of Representatives is arguing, in fact, that the president is failing in his constitutional duty to take care, that the laws are faithfully executed, which is in the Constitution but I think a lot of people think it’s unlikely, the court especially, when it’s divided 4-4 with Justice Scalia’s death.
Williams: Well there’s not a lot of governing immigration right now.
Chen: Well there is a lot that right now that those are covered under DOPA are not, do not have authorized legal immigration status.
Williams: Help us understand, DOPA is the one that says people who came here as unauthorized immigrants and had children, so they’re parents of children who were born here, can stay.
Chen: It says for deferred action for parental arrivals and would allow parents of children who came here at an early age to apply to stay.
Williams: The other one, DOCA, has to do with having been a little child brought here.
Chen: Arrived here very early and now stayed and now they’re young adults. And DOCA has already been implemented to some extent and it’s really DOPA that’s before the court today. The president’s main argument is that he has discretion, as does any prosecutor, to decide when to bring a case or when not to, and prosecutors exercise discretion all the time. Therefore he, by executive order, can tell the attorney general, who is the chief prosecuting officer, when and under what circumstances he should enforce our nation’s immigration laws against certain classes of people.
Williams: New Jersey is not party to this particular suit. How would New Jersey be affected?
Chen: If this were upheld, it would mean that we would have parents, and there are many, I know there are many, parents of early childhood arrivals who could then seek to regularize their status.
Williams: In other words a family can stay together.
Chen: Stay together, they can get a work permit, seek to get a work permit. It would remain to be seen if New Jersey would offer them a drivers license or other state-issued documents.
Williams: How significant is this ruling?
Chen: It is in the immediate, very significant for a very large number of families, millions of families, who are caught in this situation of the children, at least for now, being able to be here illegally and the parents not, so it would affect those families. It could also have an economic effect as well.
Williams: How will the fact that this is an ideologically stalemated Supreme Court, if you will — four conservatives, four progressives — going to affect the outcome do you think?
Chen: Certainly Justice Scalia’s sudden death just changes the formula a lot. With his presence, a lot of people were predicting that it might not go the president’s way. Now with a 4-4 split, what happens is the lower court decision from the fifth circuit — which is Texas, Louisiana and a few other states — would stand but there would be no precedent. Other circuits, we’re in the third circuit, would not be governed by that ruling and there would have to be another case. There’s only so much time left in President Obama’s term.
Williams: This has been a major issue on the campaign trail. We learned a long time ago not to guess how the court is going to vote. How do you predict it’s going to affect the campaign?
Chen: Well, how if affects the campaign politically, obviously with immigration, it will further divide the candidates, obviously between Democrat and Republican. The leading Democrat is being in favor of more flexible treatment of immigrants and the Republicans not. How the court will come out, I learned a long time ago not to completely predict. The standing issue would give the court a way to kick the can down the road a little bit.