As a deeply divided U.S. Supreme Court heard arguments on U.S. v. Texas on April 18, reporters covering the controversial immigration case sought Professor Anil Kalhan’s views.
It would be logical for the court to decide that Texas lacks standing to fight executive actions taken by President Obama that could defer deportation for some 4 million immigrants, Kalhan said in an interview on WHYY radio on April 18, noting that the state is balking at the cost of issuing licenses for those granted a temporary legal reprieve.
"The argument that Texas is making would allow almost any executive branch policy change that imposes some administrative costs on the states to justify a lawsuit," he said.
In a radio interview with Bloomberg News on April 18, Kalhan noted that since filing its original complaint, Texas has argued incorrectly that the administration has extended varied benefits of lawful presence such as work authorizations, Social Security and welfare benefits to those who receive notifications of deferred action.
Separate laws provide for such benefits, Kalhan explained, adding that Texas and the other states fighting the administration’s executive actions should directly challenge the regulations that surround their provision.
“Texas has never challenged these other separate sources of authority,” Kalhan said. “They’ve rolled it all into one thing and said the administration guidance is creating it.”
An April 17 article in The Philadelphia Inquirer noted that Kalhan’s scholarly article on Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans that appeared in the UCLA Law Review Discourse traced language in a district court injunction to populist and anti-immigration rhetoric.
"One of the big-picture things I've been struck by is the way the norms of political discourse, which are really toxic, charged and divisive, are bleeding into the litigation process,” Kalhan said. “The Supreme Court has an opportunity to draw a line."
On April 18, Washington Monthly published an essay Kalhan wrote, “Ending Judicial Truthiness on Immigration,” which critiques claims made by lower court judges that the administration has unlawfully imposed by decree policy that Congress has refused to authorize by statute.
The executive actions aimed to promote consistency, accountability, transparency and the rule of law among immigration officials tasked with setting priorities to contend with vast numbers of noncitizens.
“Deferred action confers lawful immigration status upon precisely no one. Both the Supreme Court and Congress have long acknowledged the practice,” Kalhan wrote. “Deferred action recipients remain deportable. They receive neither a license to violate the immigration laws nor any immunity from removal. Rather, their presence is merely tolerated, relegating them to a tenuous state of immigration status purgatory.”