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Symposium: Unable to show harm, can Texas employ the Court as a political referee?

Anne Egeler is Deputy Solicitor General for the State of Washington. She co-authored a cert.-stage amicus brief on behalf of Washington, fourteen other states, and the District of Columbia in support of the Obama administration in United States v. Texas.

For decades, Republican and Democratic presidents have used their executive authority to target immigration enforcement efforts and to defer deportation of certain undocumented immigrants. So there was nothing novel in President Barack Obama’s 2014 directive to the Department of Homeland Security to defer deportation of certain undocumented immigrants who pass background checks, have lived in the United States for five years, and either came here as children or have children who are U.S. citizens or permanent residents.

What is novel, however, is the theory under which Texas and other states challenged President Obama’s actions in federal court. Because Texas and the other plaintiff states have alleged no real harm, they should not be able to use the federal courts to further their political objectives and derail national immigration policy. The reality is that the president’s immigration directives will substantially benefit states, not harm them. That is why Washington and many other states filed an amicus brief urging the Supreme Court to hear this case and why we will file an amicus brief on the merits urging the Supreme Court to uphold the president’s actions.

Obtaining an injunction in federal court requires more than a political objective or baseless fears – it requires a showing of concrete injury. Yet the Fifth Circuit enjoined the federal immigration directives nationwide based solely on a claim that a single state – Texas – may incur increased costs to issue driver’s licenses to immigrants who secure deferred action. This alleged burden is a fiction. Nothing in the immigration guidance requires states to provide licenses or benefits to anyone. But even if states choose to provide licenses to those granted deferral, there is no reason to think that this will financially harm states. Several of the very states that joined Texas in bringing this suit already provide driver’s licenses to undocumented immigrants. And one of those states, Nevada, has explicitly concluded that offering such licenses increases state revenue because the fees collected outweigh the administrative costs.

More importantly, even if Texas chooses to issue driver’s licenses to undocumented immigrants, the alleged costs of doing so are dramatically outweighed by the substantial financial and social benefits states will reap from the president’s immigration directives. That is what prompted Washington and so many other states to get involved in this case.

Allowing immigrants to work legally – even for a limited time – enriches both the immigrant workers and American citizens. It is estimated that more than nine million people in the United States live in families containing at least one undocumented immigrant. When undocumented workers move into the legal work force, the unchallenged evidence shows that they seek work compatible with their skill level and enhance their skills to obtain higher wages. This allows undocumented parents to provide a more stable source of food and shelter for their families.

The economic impacts do not stop with the workers’ families. Allowing undocumented immigrants to work legally substantially increases state tax revenues. Growing the tax base provides a measurable benefit for all citizens. For example, according to the Center for American Progress, if the undocumented immigrants eligible for deferred action in Texas alone receive temporary work permits, Texas will enjoy an estimated $338 million increase in state tax revenue over five years. This infusion of tax money is not limited to the states. The economic success of undocumented immigrants is also linked to the financial health of the recovering national economy. As the non-partisan Congressional Budget Office reported, stopping the immigration guidance from taking effect will cost the federal government roughly $22 billion in lost tax revenue over the next ten years.

Although some fear that immigrants might harm the American economy by taking jobs from citizens, such fears are misplaced and Texas made no such allegation. This is because immigrants actually fill a critical need for labor nationally. Immigrants are concentrated at the upper and lower ends of the scale of worker skill level. At the upper end of the scale, Harvard economist Richard Freeman has found that immigrants play a critical role in filling the rising demand for science and engineering workers, as the U.S.’s share of PhDs awarded globally has decreased. At the lower end of the scale, studies show that low-skilled immigrants benefit all citizens by lowering the cost of living, with minimal impacts on low-skill native workers. As a result, Texas was unable to offer evidence that the immigration guidance will harm the existing workforce.

Another common refrain touted by those opposed to immigration reform is that it will increase crime. Yet as with the economic impacts, the reality is that allowing undocumented immigrants to come out of the shadows boosts community safety. Effective local law enforcement depends on a trusting relationship between police and the communities they serve. That relationship is critically threatened when undocumented immigrants fear that interaction with the police may lead to their deportation or the deportation of their family or friends. Studies show that people are less likely to report crime when they are afraid that the police will inquire into their immigration status or the status of family members. When victims of abuse are reluctant to seek help, and witnesses to crime are wary of deportation, crimes go unreported and unresolved. Since the physical safety of citizens and undocumented immigrants is tightly interconnected, the injunction pointlessly threatens the safety of all state residents.

Finally, deferring deportation of law-abiding parents and long-term residents also has critical social welfare benefits for families and states. Approximately 3.8 million undocumented immigrants have children who are U.S. citizens. When deportation tears families apart, the cascading consequences are felt by all state residents. In the first six months of 2011, more than 46,000 parents of U.S.-citizen children were deported. Separating children from parents who are willing and able to care for them has a heartbreaking impact on the families. If the children are fortunate enough to have two parents, deportation of the undocumented parent leaves the remaining parent straining to provide food and shelter for the family members left behind. When the severed family requires financial or housing assistance, state resources are strained. In the worst cases, children are left without parents or extended family in the United States to provide care. In 2011 alone, detaining or deporting parents resulted in 5,100 children being placed in foster care, at significant expense to the states.

The bottom line is that the lower courts erred by allowing Texas to pursue a political grievance without showing any real harm. The nationwide injunction is preventing the states and their residents from receiving the substantial economic, public safety, and humanitarian benefits that will flow from the president’s immigration actions. Hopefully, the Supreme Court will recognize these realities, reverse the Fifth Circuit, and allow the president to make the same sorts of immigration enforcement decisions that his predecessors have made for decades. We all stand to benefit.

Recommended Citation: Anne Egeler, Symposium: Unable to show harm, can Texas employ the Court as a political referee?, SCOTUSblog (Feb. 8, 2016, 1:06 PM),