Supreme Court Could Hand Obama Stinging Immigration Loss

The U.S. Supreme Court appears to be divided over President Barack Obama’s 2014 executive action on immigration, endangering his plan to allow millions of illegal immigrants to stay in the United States.

During opening arguments Monday, Justice Anthony Kennedy, typically the court’s swing voter, seemed to side with Texas and the 25 other states that argue the president overstepped his executive authority by granting deferred deportation to roughly 4 million undocumented immigrants.

“It seems to me that’s a legislative, not an executive, task,” Kennedy said. “It’s as if the president is setting the policy and the Congress is executing it. That seems upside down.”

Obama has said he took the action because Congress refuses to consider comprehensive immigration reform, one of the president’s top priorities in his final months in office. Leading Republicans like Florida Sen. Marco Rubio had once expressed a willingness to back such legislation, but abandoned that support in the face of fierce opposition from the Republican Party’s grassroots. GOP front-runners Donald Trump and Ted Cruz have promised to deport the roughly 11 million illegal immigrants estimated to be in the United States. Trump has famously promised to build a wall along the border between the United States and Mexico.

The White House did not return a request for comment on Monday’s hearing. On Twitter, Democratic presidential candidate Sen. Bernie Sanders called on the court to rule for the president.

Greg Chen, director of advocacy at the American Immigration Lawyers Association, told Foreign Policy on Monday that he expects the White House to win the fight over the executive actions, which his organization supports.

“Nothing was done that would shake the foundations of the president’s authority,” he said. “We think the existing practices and precedents of several past presidents are very much in line with what President Obama has done.”

Obama’s executive actions would affect roughly 4 million people who have lived illegally in the United States at least since 2010, have no criminal record, and have children who are U.S. citizens or lawful permanent residents. They would be allowed to enter a program that protects them from deportation and gives them work permits. It’s officially called the Deferred Action for Parents of Americans and Lawful Permanent Residents. The president instituted the plan without approval from a Republican-majority Congress, which has refused to take up immigration reform.

If the court splits 4-4, it would leave a lower court decision in place that blocked the president’s action. This would be a severe blow to Obama, who maintains his executive action is legal. The eight justices — one Supreme Court seat is vacant due to the death of Justice Antonin Scalia in February — agreed to take the case in January. The court is expected to formally rule on it by the end of June.

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