Argument preview: A big, or not so big, ruling due on immigration (UPDATED)
on Apr 11, 2016 at 9:07 am
UPDATED Friday, April 15, 10:44 a.m. The Supreme Court has released the list of counsel who will argue this case next Monday. See the end of the post.
When the Supreme Court in mid-January agreed to review the legality of President Barack Obama’s ambitious new policy for delaying the deportation of nearly five million undocumented immigrants, the Justices enlarged the case into a major constitutional test. But, with eight Justices now on the bench, the Court could find itself having to decide it on a narrower, yet still historically important, constitutional basis.
Next Monday, April 18, the Court will hold ninety minutes of oral argument on United States v. Texas, with the review coming coincidentally in the midst of a presidential election campaign in which immigration policy is one of the dominant issues being argued before the voters. When the Court decides, by summer, its ruling could play a direct part in presidential politics, even if the Court does not intend to have any influence on voters. The case is thus deeply immersed in politics, yet the Justices will try to decide it on purely legal grounds.
In many ways, the case of United States v. Texas illustrates much about the current political climate in America and in the nation’s capital, in particular. It reflects gridlock, partisan polarization, and the use of sometimes imaginative lawsuits to pursue political or policy agendas. It is a modern echo of what the Founders debated with great intensity: how to divide up the powers of national and state governments. But this dispute’s pure political content is a product of the modern era’s partisan warfare, the stubborn refusal to compromise in order to get something done, even in very important fields of policy.
President Obama and Congress have not been able to put together a comprehensive new immigration policy, and so the president has opted to make unusual uses of claimed executive authority. His government’s November 2014 orders would put off, for three years and perhaps longer, the compelled deportation of upwards of four million undocumented immigrants, some of whom came to the country illegally and others who had permission to enter but overstayed and lost that status. Most of them are parents of children who have a legal right to remain. The parents would not gain U.S. citizenship, but would be allowed to remain in the country without legal status and could get a job and access to public benefits, such as driver’s licenses.
The legal fight was brought on by states where Republicans dominate the governments, and where the idea of suing the national government over policy disputes has grown more and more popular. United States v. Texas is as much a part of those efforts as have been the repeated courthouse challenges to Obamacare (the Affordable Care Act), with states playing major roles in those cases, too.
One of the curious things about the immigration case is that, to avoid its own form of gridlock (a four-to-four tie among the eight Justices), the Court might have to form a majority that actually blunts the use of state-initiated lawsuits borne of policy disputes. That is the so-called Article III question: in legal terms, do the state governments have “standing” to sue the federal government to block its actions with which they disagree legally and politically?
It is not at all unlikely that the Justices could agree that the states do lack “standing” to sue, because endorsement of that tactic might lead to a flood of state efforts to contest one federal program after another — a prospect that might be unsettling to almost all of the Justices. It is a far less divisive issue, it seems, than the other constitutional question that the Court added to its review: the president’s duty to faithfully carry out laws passed by Congress.
Here is what is at issue regarding state “standing” to sue: to be allowed in federal court under Article III, a state government — like anyone else who seeks to sue in those courts — would have to show that the action being challenged causes it a definite injury or harm. The injury cannot be theoretical or speculative; it must be real, existing right now or predictably. That is to assure that there is an actual “case or controversy,” as the Constitution demands.
The issue is before the Court in the immigration case in a direct contest between the two sides: the federal government argues that the twenty-six states cannot show any injury to themselves from the deferred deportation program, and the states argue that at least one of them (and that’s all it takes for a group to be allowed to sue together in federal court) will face significant financial burdens under the policy. That is an argument keyed to the state of Texas, which asserts that it will have to spend millions of dollars of public money to provide driver’s licenses to the large group of immigrants who would be allowed to stay in the country.
Both a federal trial judge in Brownsville, Texas, where the states filed their lawsuit, and the U.S. Court of Appeals for the Fifth Circuit, ruled that Texas did have standing under the driver’s license expenses theory. The case then went forward on that basis, but, so far, only preliminary rulings have emerged because the case has never gone forward to a full trial. In the meantime, the policy first announced in mid-November 2014 has been on hold, under the lower courts’ orders.
Aside from the Article III decision in the states’ favor, the two lower courts did not rule on the broader constitutional issue that the state governments had included in their lawsuit. That is the sweeping claim, under the Constitution’s Article II “Take Care Clause,” that President Obama failed to “faithfully execute” the federal immigration laws as passed by Congress. (Bypassing that issue, the lower courts blocked enforcement of the policy by declaring only that it violated provisions of a federal statute, the Administrative Procedure Act.)
The federal government’s appeal to the Supreme Court argued that the Court need not rule on the Take Care Clause, contending that it added nothing to the states’ claims under the APA. The states, though, urged the Court to take on that issue, too. Using its power to shape the scope of its own review, that is exactly what the Court did on January 14, granting review of the issues raised by the government, and tacking on the Take Care Clause dispute.
At that time, Justice Antonin Scalia was on the Court. He died on February 13, leaving one place on the Court vacant, at least for a time. There is no way for outsiders to know whether he had played any role in adding review of the Take Care Clause claim.
When the eight-Justice Court examines that constitutional dispute, it would be drawn deeply into what the Take Care Clause means and what, if anything, there is about the deferred deportation policy that reflects a lack of “faith” toward enforcing federal immigration laws — laws that impose sometimes strict limits on who may stay in the country without legal permission. The administration contends that it has discretion on how specifically to carry out laws passed by Congress, and asserts that it is not practical to deport more than four million people. It says it wants to use its resources to deport criminals or others who are found to pose a threat to public safety. The states counter that the deferred deportation policy is not simply an enforcement approach but is a form of presidentially enacted, new legislation — a task left to Congress by the Constitution.
It is not difficult to imagine that, on that part of the dispute, the Court would find itself dividing along customary philosophical lines, with the result that it could split four to four. Nothing would be decided finally by such a split, so the Texas case would then go on to a trial, with the issue not likely to return to the Court until after President Obama has left office next January following the inauguration of a new president.
If the Court did find itself evenly divided on that issue, it could choose to end the case by ruling against the states’ right to sue.
If a split occurs and the Court cannot decide the direct challenges to the policy and does not end the case by barring such lawsuits by states, lower court orders against enforcement would be left in place, so the Obama policy’s fate would then be — after the November 8 election — in the hands of the new president and the newly elected Congress, which also takes office in January. In the meantime, President Obama, in what remains of his second term, would not be able to do anything to carry out the policy. The program, of course, would face greater political hazards come next January if one of the leading Republican candidates were elected in November. (The Obama administration is now in the process of carrying out a policy it announced in June 2012 for immigrants who came to the country as children with their parents, illegally, and have grown to adulthood in the United States. Judged on a case-by-case basis, those individuals can become eligible to remain in the country for two years, to get a job, and to have access to public benefits, but with no guarantee of a path to citizenship. As part of the 2014 orders, that program was expanded, but the newer version was found by lower courts likely to be illegal, just as those courts did with the parents’ deportation deferral opportunity. The earlier version of the program for young adults, though, remains intact.)
Should the Court find a way to uphold the 2014 orders, such a decision would likely be issued in late June, leaving the Obama administration with only a few months remaining to try to at least begin carrying out the parents’ side of the program, and expanding the young adults’ side of it.
Beyond the constitutional questions surrounding Article III “standing” of the states and arising under the Take Care Clause of Article II, the case before the Justices involves several questions that involve claims under a federal law, the Administrative Procedure Act, which generally governs how federal agencies adopt new programs or policies and how they put those policies into effect, under laws passed by Congress.
In the Texas case, here, in summary, are the Administrative Procedure Act questions:
** Did President Obama exceed the powers of his office in going forward with a massive new immigration policy without approval by Congress, and thus violating that act’s direct restrictions on the use of executive branch power?
** Is the deferred deportation policy a product of “arbitrary and capricious” actions by President Obama and his cabinet departments, and thus violates that act?
** Is the policy subject to review in the courts, applying the act, or are the specific modes of enforcing immigration laws a matter left to the discretion of the president and his cabinet?
** Is the policy illegal, under the APA, because it was not first announced as a draft program, offered to the public for its reactions, or then issued in final form, or is the policy exempt from that requirement because it was achieved through executive branch discretion?
When the case went before U.S. District Judge Andrew S. Hanen in Brownsville, Texas, he ruled only that the challenging states were likely to succeed, at a trial, in showing that the policy violated the procedural requirements of the APA. Based on that, he issued a nationwide ban on enforcing the policy in any way. He refused a government plea to limit the enforcement ban to Texas alone or to the twenty-six states that had sued.
When the government appealed to the Fifth Circuit, that court divided two to one in agreeing that the states were likely to win at trial on all of their claims under the APA. It went further, under that law, than Judge Hanen had, also finding that the states were likely to win ultimately on their claim under the provision that limits presidential power to adopt policies that do not have the specific approval of Congress. That court, too, found the nationwide ban on enforcement to be necessary at this point, prior to a trial, because of the prospect that the states would ultimately win.
The Obama administration did not ask the Supreme Court to lift the nationwide ban on enforcement, but it did quickly file its appeal in the Supreme Court, urging the Justices to put the case on their docket for decision during the current Term — that is, before the likely close of the Term in late June or early July. The Court did put the case on an expedited basis, to finish the written briefing in time for an April hearing.
The April oral argument had originally been set for just one hour, but the Court on Friday agreed to requests to add more time, for a total of ninety minutes. The federal government will share ten minutes of the forty-five allotted to its side with a lawyer for undocumented parents who would benefit from the deferred deportation policy. The state of Texas will share fifteen minutes of the forty-five available to the states with a lawyer for the U.S. House of Representatives.
The Texas case is the only one on the Court’s calendar for that day, so Chief Justice John G. Roberts, Jr., is likely to be somewhat relaxed about enforcing the formal time limit, if the Justices and lawyers are actively exchanged in the discussion.
The Court has not yet indicated which four lawyers will argue.
UPDATED Friday, April 15: Here is the lineup of counsel for Monday’s argument: For the federal government, defending the policy, U.S. Solicitor General Donald B. Verrilli, Jr., thirty-five minutes; for the undocumented parents who could benefit from the policy, Thomas A. Saenz of Los Angeles, president and general counsel of the Mexican American Legal Defense and Educational Fund, ten minutes; for the twenty-six states challenging the policy, Texas Solicitor General Scott A. Keller of Austin, thirty minutes; and, for the U.S. House of Representatives, an amicus in support of the states’ challenge, Erin E. Murphy of the Washington, D.C., law firm of Bancroft PLLC, fifteen minutes.