The Supreme Court heard arguments Monday in a case challenging President Barack Obama’s programs to allow millions of undocumented immigrants to stay in the country and apply for work authorization.

At issue in the widely watched case is not only whether Obama exceeded his authority, but also whether the court should decide the case on the merits or find that the states that brought the lawsuit lack standing. Obama’s proposed program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would protect, among others, parents of children who are born in the United States. The lawsuit also challenges the planned expansion of the existing Deferred Action for Childhood Arrivals (DACA) program.

“DAPA is an unprecedented unlawful assertion of executive power,” said Scott Keller, solicitor general of Texas, who argued the case on behalf of Texas and 25 other states challenging the administration.

The Obama administration argued that the president, faced with limited resources, is exercising lawful discretion to allow parents of U.S. citizens and permanent residents to remain in the country and apply for work permits, provided they meet certain eligibility requirements, including having lived in the country since 2010, and do not have criminal records.

“This class of aliens is the lowest (deportation) priority,” said Solicitor General Donald Verrilli. “And there is a pressing humanitarian concern in avoiding the breakup of families that contain U.S. citizen children.”

Verrilli also argued that the court should reverse the lower court’s decision for lack of standing, claiming that the states do not face a redressable harm. The case reached the Supreme Court after a three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld a district court’s ruling to stop Obama’s immigration plans from taking effect.

The justices appeared split Monday.

Verrilli faced sharp questioning from Chief Justice John Roberts and Justice Samuel Alito on the standing question as well as the legal basis for allowing people to work who are not lawfully present. Keller, meanwhile, was challenged by Justice Sonia Sotomayor on his claim that the Obama program is a sweeping plan that lacks congressional assent. Sotomayor noted that a 1986 regulation allows deferred action recipients to apply for work authorization, and she pointed to a 1990 executive action that protected 40 percent of the undocumented population at the time a larger proportion than the Obama plans would cover.

BAL Analysis: The litigation does not affect the administration’s policies on high-skilled immigration, but the case represents one of most significant legal battles over immigration in years. If the court rules in favor of the administration, the Obama administration would have several months to begin implementing the expanded DACA and DAPA programs before the president leaves office. The vacant seat on the court means that if the eight sitting justices are divided evenly, the lower court ruling will remain in place, blocking the programs from being implemented. A decision is expected by the end of June.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact