It’s been a busy week in executive politics, what with impeachment in Brazil and Hillary coming up Trumps in New York. But we shouldn’t lose sight of the Supreme Court’s most recent tour of the administrative state. The venue? The Obama administration’s controversial immigration initiative, in the form of United States v. Texas.
Recall that in November 2014, President Obama proposed to make it easier for many individuals now living in the United States illegally to stay and to work. The largest and most divisive piece of this was a program called Deferred Action for Parents of Americans (DAPA). Under DAPA, the secretary of homeland security issued guidance reshaping its “removal priorities.”
The upshot: The deportation of as many as 4 million parents of U.S. citizens would be deferred, and in the meantime they would be able to work legally.
Texas (joined by officials from 25 other states) sued to block the program, and won in the lower courts. The administration appealed, and in agreeing to take the case, the Supreme Court asked four questions:
1) Do Texas and the other states have standing to sue the federal government in the first place? If not, there’s no case – the president wins.
2 ) Did the Department of Homeland Security follow an acceptable administrative procedure in issuing the DAPA guidance? For instance, is the policy really a regulation that should have had a public comment period? If so, the president loses.
3) If the guidance was legally issued — was what it did legal? Or did it go beyond the discretion Congress has granted the president in immigration law?
4) Indeed, might the guidance be not only illegal but unconstitutional? Did it represent a violation of the president’s duty to “take care that the laws be faithfully executed?” As I suggested back in January, answering “yes” here would add little in immediate terms to a “yes” answer to No. 3 – but could allow an ambitious court majority to (finally) say something definitive about the “take care” clause, even to revisit the doctrine of judicial deference to administrative agencies in how they execute the law.
Since January, a plethora of briefs has piled up addressing all these issues — from administrative law scholars, religious groups, current and former legislators, and even Citizens United (yes, that Citizens United). Sixteen states filed a brief opposing Texas and its allies. My own state, Maine, by the way, managed to be on both sides of the case. (The way life should be!)
From the oral arguments of April 18, though, the justices seem particularly interested in only two of the four questions. Though the House of Representatives was granted a separate chance to argue against the program, the constitutional question (No. 4) received no attention. This may be because with only eight justices on the court at present there is little prospect of a far-reaching exegesis of the “take care” clause winning five votes. Likewise, while the procedural question (No. 2) seemed to intrigue Justice Anthony M. Kennedy, it was played down by the House’s counsel and raised only at the very end of the Texas argument in a “and they didn’t even do this!” sort of way.
By contrast, the question of standing was central to the discussion. This makes sense, since a technical ruling on those grounds would be a conveniently non-substantive way for the divided court to temporarily dispose of the case. (Presumably, someone else harmed by the program would bring suit later, but by then there would be a new president and, maybe, a full court bench.)
Liberal justices were eager to grant states standing in the 2007 climate change case Massachusetts v. EPA — but were rather less so here. Chief Justice John G. Roberts, by contrast, wrote in 2007 that “relaxing Article III standing requirements because asserted injuries are pressed by a State … has no basis in our jurisprudence,” but here was pleased to treat the majority opinion as gospel. U.S. Solicitor General Donald Verrilli said there were “fundamental differences” between the environmental issues at stake in that case and the immigration program; Justice Stephen G. Breyer likewise chimed in to claim that Massachusetts was not about money but about sovereignty over physical territory threatened by global warming. “We have an easily identifiable sovereign interest on who’s within our borders,” replied Texas Solicitor General Scott Keller.
Much of the argument centered on the costs Texas would incur by issuing drivers’ licenses to DAPA-protected individuals. (“Isn’t losing money the classic case for standing?” Roberts asked.)
The liberal justices asserted – arguably more coherently than did Verrilli – that Texas could change its law and not grant licenses to the DAPA population. Justice Sonia Sotomayor, taking on the Scalia Memorial role as aggressor throughout, asked Keller, “Can we give you standing just on the basis of you saying, ‘I’m going to do this when it makes no sense?’ ”
She also argued that Texas could choose to avoid new costs by not hiring new licensing personnel. After all, she said, customer service is so terrible at most motor vehicles departments that no one would notice if the DAPA population just got in the existing lines. More broadly, Breyer wondered whether allowing states to sue over the incidental cost of federal policy would mean that “every case of political disagreement where States disagree would come before the Court.”
On the substantive side, things were equally divided. Interestingly, despite the broad claim by Texas’s Keller that “DAPA is an unprecedented unlawful assertion of executive power,” the focus was not on whether the administration had the right to defer the deportation of such a large number of people. (This is new, as Ilya Somin points out.)
Rather, it was on what that deferral granted – such as the right to work. “They could do forbearance from removal,” Keller said. “But what they can’t do is grant authorization to be in the country” and therefore garner positive benefits. The House’s counsel added, “you’re not considered lawfully present just because the Executive is not actively pursuing removal proceedings against you.”
Verrilli argued that this interpretation would “completely and totally upend the administration of the immigration laws,” since “huge numbers” of people in the U.S. have the ability to work but no pathway to citizenship. Under questioning, Verrilli held that no one’s legal status was being changed – indeed, that “lawfully present does not mean you’re legally present.” Justice Samuel A. Alito Jr. wondered what this suggested for common sense, or the English language. (Granted, as a Supreme Court justice, he is familiar with many abuses of common sense, and of the English language, for that matter.)
It would be possible for the court to split the difference here – if Texas et al are conceding that the president can choose not to deport someone, even 4 million someones, even jointly, the resolution could be limited to restricting the grant of “lawful presence” and what that implies.
Which, like a 4-4 split generally, might leave the president dissatisfied, but the headline questions of presidential power unresolved. The ambiguities were on display throughout. When asked whether the president could defer the deportation of every person in the U.S. illegally, Verrilli’s first answer was very clear: “Definitely not.” But he then wandered through a variety of regulatory and statutory constraints before concluding that “you’ve got to ground [deferrals] in affirmative policies like the one here.”
It was not quite clear how large those affirmative policies were allowed to be under the administration’s interpretation of its discretion. Kennedy worried about “upside down” arguments that emphasized congressional acquiescence to past executive decisions. “What we’re doing, he noted, “is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act.” Yet the administration argues the legislature has already acted – and given it the discretion it needs.
The court – if it chooses to – will take a stab at that question in June.