Richard Wolf

USA TODAY

WASHINGTON — President Obama's effort to offer temporary protection from deportation to more than 4 million undocumented immigrants ran into opposition from conservative justices on the Supreme Court Monday, but the outcome of the case remained unclear.

Chief Justice John Roberts and Justice Anthony Kennedy didn't give much ground, as immigration rights advocates had hoped, on whether Texas has the right to sue the federal government and whether the president has the authority to go around Congress.

"What we're doing is defining the limits of discretion" for who the government can and cannot deport, Kennedy told U.S. Solicitor General Donald Verrilli. "And it seems to me that that is a legislative, not an executive, act."

But the court's more liberal justices said Obama's deferred-action program merely tells undocumented immigrants who qualify that, "you will not be deported unless we change our minds," Justice Elena Kagan said.

The immigration battle was waged on two fronts before the court: The Obama administration fought with Texas and 25 other states as well as with the House of Representatives, which previously blocked the president's effort to confer legal status to some of the nation's more than 11 million illegal immigrants.

And it occurred in the midst of a presidential election in which Republicans Donald Trump and Ted Cruz have promised to crack down and deport the same people that Democratic candidates Hillary Clinton and Bernie Sanders want to help.

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Much of the debate before the eight-member court, shorthanded since the death of Justice Antonin Scalia in February, focused on whether the program would grant undocumented immigrants "lawful presence" — a phrase originally used by the federal government, but which Verrilli insisted has no meaning in immigration law.

"That phrase, 'lawful presence,' has caused a terrible amount of confusion in this case," Verrilli said. "We are not trying to change anybody's legal status."

Roberts and Justice Samuel Alito didn't buy that explanation. "How is it possible to lawfully work in the United States without lawfully being in the United States?" Alito asked. "I'm just talking about the English language. I just don't understand it."

The case also could be decided on more narrow grounds: whether Texas even has the right to sue, based solely on its prediction that it would have to spend money issuing driver's licenses to hundreds of thousands of immigrants who receive the three-year reprieve from possible deportation.

"The bottom line is if we're going to have to issue more driver's licenses, it's going to cost more money," said Texas Solicitor General Scott Keller.

Roberts appeared to debunk speculation he would oppose Texas' right to bring the lawsuit within minutes of the debate getting under way. Noting that the administration claims Texas does not have to issue the driver's licenses, he said, "You would sue them, wouldn't you?"

Obama announced the "Deferred Action for Parents of Americans and Lawful Permanent Residents," or DAPA program, in November 2014. It would extend protections to more than 4 million parents who meet the criteria, just as a 2012 program did for immigrants brought to the United States as children. More than 700,000 have qualified for that earlier program.

Once qualified, parents also could apply for work authorization and receive some benefits, such as Social Security. Those with criminal backgrounds or who have arrived since 2010 would not qualify.

Texas and 25 other states challenged Obama's authority to implement the policy by executive action, rather than going through Congress. Federal district court Judge Andrew Hanen in Brownsville, Texas, upheld the challenge in February 2015 and blocked the program from being implemented nationwide.

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The U.S. Court of Appeals for the 5th Circuit upheld that ruling last November in a 2-1 decision. The panel's majority said Obama exceeded his authority by going around Congress.

The Supreme Court agreed in January to hear the case and expanded its scope to include whether Obama's action violated the Constitution's "Take Care Clause" by failing to faithfully execute the nation's immigration laws. The justices did not mention that during Monday's argument.

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Verrilli and Thomas Saenz, a lawyer representing three Texas mothers of children who are U.S. citizens, argued that Obama's policy only makes official what is happening anyway — undocumented immigrants who do not have criminal records and are not priorities for deportation are generally left alone. The government only has enough funds to deport about 400,000 a year, they said.

"We have basically 10 million, nine hundred thousand people that cannot be deported because there's not enough resources," Justice Sonia Sotomayor said. "So they are here whether we want them or not."

But Keller and Erin Murphy, a lawyer representing the House of Representatives, said that while the president can choose not to deport individual immigrants, only Congress can defer action on a class-wide basis.

"Congress has to grant the statutory authority first for the executive to be able to act," Keller said.

Scalia's absence is not expected to influence the case, since a 4-4 vote would leave the federal appeals court ruling in Texas' favor standing. A tie vote would not set a national precedent, but it would keep the national injunction against the program in place.