Live from the Rio Grande: : The Dirty Way Texas Could Win Its Supreme Court Challenge To Obama's Immigration Policies: "Chief Justice John Roberts... was also viewed as a possible swing vote...
...Yet if Kennedy spent some of Solicitor General Donald Verrilli’s time at the podium dashing the hopes of immigration advocates, Roberts spent far more time lighting those hopes on fire.... Texas claims, in an argument that often appears more metaphysical than legal, the memorandum takes individuals who have broken immigration laws and somehow transforms them into people who may ‘lawfully’ remain in the United States. This spiritual cleansing of the taint of lawbreaking, according to Texas, is not allowed. The Chief hounded Verrilli for phrases in the Solicitor General’s reply brief, which explain that the phrase ‘lawful presence’ does not have the same meaning as other, broader phrases, such as ‘lawful status.’ It’s a distinction that makes sense to lawyers steeped in the arcane details of that law, but that is easy to mock if you only read parts of the brief without understanding their context. If any part of the oral argument is played on Fox News tonight, expect it to be this exchange between Verrilli and the Chief Justice....
Texas’ metaphysical objections soon run headlong into the very real force that is Justice Elena Kagan. Towards the end of Verrilli’s time at the podium, Kagan asks whether the administration could have implemented the exact same policy as the one described in the DAPA memorandum without using the offending phrase ‘lawfully present.’ Verrilli, sensing that he’s been thrown a lifeline, immediately responds ‘yes.’ This question, of whether the administration even needs to use the term ‘lawfully present’ in order to accomplish what they seek to accomplish with DAPA, dominates Texas Solicitor General Scott Keller’s argument time. Early in his argument time, Keller reiterates his metaphysical claim, complaining that ‘transforming unlawful presence into lawful presence’ is one of the primary sins committed by DAPA that must be washed away with fire by the Supreme Court. Justice Ruth Bader Ginsburg responds by noting that Texas concedes in its brief that the administration can deem certain immigrants to be low priorities for deportation, and even issue those immigrants cards informing them of their low-priority status so that they know that they are relatively safe from the watchful eye of immigration authorities.... Kagan pounces. If... the phrase ‘lawfully present’ can be excised... without changing how [the policy] operates... why does it matter at all[?]...
