DAPA Deadlock

The arguments against the legality of DAPA are…not good. But, alas, they’re probably still enough to get the four Supreme Court votes its opponents need:

For his part, Texas Solicitor General Scott Keller also got a rough ride from the Court’s liberal faction. Justice Kagan focused in particular on Keller’s concession that it was not illegal for the executive branch to defer action on the groups covered by DAPA. “You’re saying that the government could do this case-by-case, one-by-one with respect to all the people in the class,” asked Kagan incredulously, “but that the government cannot identify the entire class and say we’re forbearing from enforcement?” As for the “lawful presence” language that obsessed both the state of Texas’ briefs and the conservative justices, Kagan correctly observed “that phrase really has no legal consequence whatsoever.”

Kagan’s performance was masterful — but it’s unlikely that it will be enough to save DAPA. As weak as Texas’ arguments were, they seemed good enough to get them the tie they’re looking for.

Some Court observers had speculated before oral arguments that Chief Justice John Roberts might try to avoid a 4-4 split by agreeing with the Court’s liberal faction that Texas lacked the legal standing to challenge DAPA. This is still possible. On Monday, however, he seemed skeptical, asking Verrilli to begin with the standing argument and then peppering with questions suggesting that he believed that Texas had the standing to sue.

An evenly split court affirming the 5th Circuit’s opinion striking down the order would not legally settle the issue of the executive branch’s authority. But it will mean that a class of undocumented immigrants will remain in an unnecessary state of legal limbo. And it also means that the policy will ultimately be determined by the next president: not only through the immigration policy he or she favors, but on who (and whether) he or she will be able to appoint to the Supreme Court.