What Should We Expect From the SC Showdown Over Immigration ?

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Hi, Eric,

As its name suggests, United States v. Texas, the blockbuster immigration case that the Supreme Court will hear this morning, pits federal executive power against state authority. The case also pits the Obama administration’s view — that it’s time to grant relief from deportation to a substantial fraction of the country’s 11 million undocumented immigrants — against conservative opposition to any reform that smacks of amnesty. If you like Donald Trump’s wall, you probably won’t like Obama’s program. The doubts about it aren’t confined to the border: Joining Texas in challenging the president are 25 other Republican-governed states.

The case is obviously drenched in politics. Back in his first term, when immigration reform appeared to have a shot in Congress, President Obama said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” But after Congress failed to pass the Dream Act, which would have provided a path to permanent residency for undocumented immigrants who came to the United States as children, in the summer of 2012 Obama found the executive power he previously denied having and signed an order called Deferred Action for Childhood Arrival, modeled on the Dream Act. More than a million people qualified. In 2014, the Department of Homeland Security expanded DACA and added DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents), making as many as four million more people eligible to stay here and work if they met certain requirements, including having no criminal record.

There’s a no-big-deal view of these orders, which you’ve expressed in the past: The government chooses how to enforce laws, and whom to deport, all the time. It’s called prosecutorial discretion. Obama’s orders merely formalized one form of that, allowing millions of people to breathe easier and to plan, while allowing the government to retain the power to make case-by-case determinations and exceptions. By announcing a new route to permanent residency, the Obama administration didn’t write a new law or even substantially change an old one. The president’s order merely led to a kind of news bulletin from the Department of Homeland Security (or a “general statement of policy,” in the language of administrative law), to let the public know that its enforcement priorities had changed.

There’s also a less sanguine view of DACA and DAPA: When Obama signed these orders after failing to get his plan through Congress, he acted dictatorially — or at the very least, expanded his executive authority at the expense of Congress, a bad habit in a democracy that depends on the separation of powers. Obama’s critics also accuse him of wielding his magic pen for partisan gain. In 2008 and 2012, Latinosvoted for him in high numbers, with high hopes, only to watch him preside over a record number of deportations. Mass-deportation relief is Obama’s bid to spruce up his legacy with a key voting bloc, one that Democrats need to win in November.

This political debate intersects with some of the legal arguments before the Supreme Court. Texas says the president has failed to fulfill his constitutional obligation to “faithfully execute” federal immigration law. (This obligation comes from the charmingly named Take Care Clause in Article II.) Am I right that the Supreme Court hasn’t often laid out what it means for the president to “faithfully execute” a dense body of law, like the statutes that set immigration policy? It’s the kind of open-ended concept that could become a bottomless pit, if the court jumps in. Where does prosecutorial discretion end and unfaithful execution begin? I wonder if the court included this question for review in part, at least, at the urging of Justice Antonin Scalia, and whether his death leaves his colleagues with a diminished appetite for answering it. What do you think?


Hi, Emily,

It’s hard to make sense of this case. The idea that the president can refrain from enforcing the law is baked into the Constitution; that is what the separation of powers means. To protect us from the might of the federal government, the founders agreed that any coercive action must be authorized both by Congress (which passes a law) and the executive (which enforces it). Anything else is “tyranny.” Thomas Jefferson himself called off prosecutors who were enforcing the Sedition Act, a law that prohibited criticism of the federal government.

Moreover, both DAPA and DACA largely codified the longstanding practice of Democratic and Republican presidents. Because Congress has never given immigration authorities enough money to catch and deport all undocumented immigrants, presidents have sensibly chosen to direct or allow agencies to focus resources on criminals and other dangerous people — not on children, the elderly and others who stay out of trouble. It is true that DAPA and DACA also entitle beneficiaries to work permits, welfare benefits and the like, but the immigration law itself authorizes the executive branch to confer those benefits on anyone whom it decides not to deport, for whatever reason.

Many critics have cited the “Take Care” clause of the Constitution, which, as you say, directs the president to “faithfully execute” the laws. But if Congress deprives the president of the resources necessary to deport everyone, then the president faithfully executes the laws by executing the ones he can afford to execute. In law as in ethics, “ought” implies “can.”

But this case does reflect deep and understandable anxieties about our constitutional system in an age of political polarization. Republicans have woken up to the alarming powers of the president to make policy by choosing which laws to enforce, and how much. The founders did not anticipate the growth of the federal bureaucracy, which enables the president to make policy by emphasizing some programs and neglecting others. Republicans are right that the question of who gets to stay in the country is traditionally a policy matter for Congress — and when millions of people are affected by a unilateral decision by the president, we might be troubled about the magnitude of the president’s power. The administration’s response — that Congress has authorized DAPA and DACA by giving the president so much discretion in the first place — is a legalistic argument that avoids rather than addresses the problem.

The Democrats, by contrast, have woken up to the weakness of Congress. The rules and traditions of that august body give small groups of representatives, acting on behalf of a tiny segment of the population, the power to block reform that nearly everyone agrees is needed. Here, too, we detect the fingerprints of the founders, who feared tyranny by legislative majorities. But the founders expected state governments to do most of the governing; in the modern era, vast swaths of policy have been given over to the feds.

For most of our history, majorities in Congress bought off the minority with logrolling, pork and the like. But in recent decades, complex demographic and institutional changes have yielded a polarized Congress in which payoffs are hard to arrange. In the face of congressional paralysis, the public — most of it — looks to the president to solve its problems, enabling the president to call upon his latent legal powers with full force. This naturally enhances support for the president among his constituency and magnifies the distrust of his opponents, causing further polarization.

Can the Supreme Court clean up this mess? Definitely not. The judges on the lower courts — a Republican-appointed Dstrict-Court judge, and two Republican-appointed Circuit Court judges who outvoted a Democratic-appointed colleague — held that the president should have gone through the administrative procedure called notice-and-comment rule-making. If the Supreme Court upholds this ruling, it won’t shift the balance of the power back to Congress; it will simply make it somewhat more time-consuming for the president to exert his or her will.

Only if the Supreme Court announces broad and unprecedented restrictions on the president’s discretion to enforce the law could the ruling impose a meaningful constraint on future presidents — and the court won’t do that. The liberal justices can block a ruling with precedential effect by ensuring a 4-4 tie that would uphold the lower court’s decision but not create new constitutional restrictions on the president. We could even see a 5-3 vote in favor of the president, with Chief Justice Roberts joining the liberals in an opinion that reverses the lower court and leaves our creaky system of governance intact. He may think that a powerful president — even a powerful liberal president — is not as big of a problem as a government that doesn’t work.


Hi, Eric,

I suspect the court’s four liberal-moderates (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) will reject Texas’s challenge, as you predict. They were a remarkably disciplined voting bloc last term, and they must be emboldened by the court’s new composition, which evens the ideological sides.

I wouldn’t count Roberts’s vote yet, though. You’re right that he cares about the court’s institutional reputation, and he has become a whipping boy of the right for his two votes to uphold Obamacare. But the idea that Roberts is a traitor to the conservative movement is hugely unfair to him. His votes for Obamacare served the interests of the Republican Party, even if many of its leaders can’t admit it, by preventing another hugely divisive fight over how to replace Obamacare. The G.O.P. is much better at calling for its demise than at explaining what would come next.

Roberts has also come through for the right in cases with a clearer payoff for Republicans, like his decision to strike down a crucial element of the Voting Rights Act. If he can deny a prize to Latinos that they fought for, and that President Obama promised them, he could do more than hand the Democrats a short-term defeat. He could disillusion a crucial voting group that historically has low rates of voter registration and turnout. Roberts could do this with a one-line decision that affirms the Fifth Circuit’s decision, 4 to 4. A tie would set no national precedent, but it would avoid handing the Democrats a victory.

I suppose it’s possible that a split along party lines at the court, with the effect of killing DACA and DAPA, could fuel the naturalization and voter-registration drives among Latinos that have already begun. Hillary Clinton or Bernie Sanders could use it as one more argument against electing Donald Trump or Ted Cruz: Don’t put filling the next Supreme Court vacancy (or the current one?) in their hands. But I’m skeptical. Fairly or unfairly, I think this will resonate more deeply as Obama’s unfulfilled promise. If the Supreme Court says Obama blew it, the majority will write an opinion that makes it look as if he’s to blame.

It’s also possible that the justices could decide this case in Obama’s favor by deciding that Texas and the other states lack standing to sue, because the president’s immigration policy doesn’t cause them harm. That argument has a certain appeal. The real power struggle, as we’ve discussed, is between the president and Congress. So why give the states center stage in the fight? Texas argues that it has standing because it will suffer the harm of paying for driver’s licenses for the people entitled to them because of the president’s order. The United States Court of Appeals for the Fifth Circuit agreed.

But immigration is an arena in which courts generally give the feds far more latitude than the states, for the sake of national sovereignty and coherent, unified policy making. What do you think?


Hi, Emily,

Standing doctrine is a famously incoherent area of the law. The doctrine started off innocently enough, as a means of making sure that the right people brought disputes to a court. If I run over your dog, then you can bring a suit against me. Your neighbor can’t, even if he loves your dog or belongs to the A.S.P.C.A. In the law’s view, I haven’t injured him; you have standing to sue me, but if you don’t bother, he doesn’t have standing to sue in your place.

When the government acts, however, things become more complicated. If a police officer runs over your dog, you have standing to sue (and your neighbor still doesn’t). But what if the government refuses to deport undocumented immigrants who loiter in your neighborhood, and you think the president has violated the Take Care clause or some other law? Can you sue now? No, says the courts: you haven’t suffered an injury. Maybe you feel injured, but the injury isn’t “individualized”; because it’s shared by others, it doesn’t count for standing. With a bunch of exceptions not relevant here, citizens can’t sue the government for doing things they don’t like, or not doing the things they want to see done — and this is true even if it turns out that the government’s actions or inactions violate the law.

The “injury” analysis becomes more complicated for governments. Is Texas “injured” if the federal government refuses to deport undocumented immigrants on Texas soil even though no specific Texan is? Is an injury that is general to all Texans “individualized” to Texas? Maybe or maybe not.

In the 2007 case Massachusetts v. E.P.A., the Supreme Court tried to clear this up. The court held that Massachusetts had standing to sue the Environmental Protection Agency in order to compel it to issue greenhouse-gas regulations (but not, unlike in our case, to actually enforce the law against violators). What was the injury that gave Massachusetts standing? Rising sea levels, which will erode Massachusetts’ territory, said the Court. Citing this case, the Fifth Circuit majority in our current case argued that the cost of supplying driver’s licenses would erode Texas’s budget. The dissenting judge argued that in the Massachusetts case, the Supreme Court relied on a special provision of the Clean Air Act that authorizes lawsuits; there is nothing similar in immigration law. Nor did she think that shuffling around items in the state budget is the sort of injury that the Supreme Court had in mind for standing.

Whomever the Supreme Court sides with, the interesting thing here is the way in which the usual ideological lines have been scrambled by this case. Conservatives normally want to limit standing, to keep busybody liberal public-interest groups from using lawsuits to compel agencies to regulate. Liberals usually go in the other direction. The Texas case is a rare one in which an effort is made to stop the government from conferring a benefit. Now it’s the conservatives who want to bring suit. Not surprisingly, in the Fifth Circuit, it was the liberal dissenter who argued that Texas lacked standing and the conservative majority that argued that Texas possessed standing. Did I mention that commentators are skeptical about how courts use standing doctrine?

Justice Roberts, who dissented in Massachusetts v. E.P.A., argued in his opinion that Massachusetts lacked standing because it couldn’t really connect the dots from E.P.A.’s failure to regulate and the disappearance of another chunk of Cape Cod into the Atlantic Ocean. He complained bitterly about the majority’s statement that Massachusetts’ “quasi-sovereign” interests entitled it to “special solicitude” in standing analysis. “The constitutional role of the courts,” he thundered, “is to decide concrete cases — not to serve as a convenient forum for policy debates.” The Texas case, which puts the court in a difficult position if it wants to avoid being embroiled in a serious political fight, gives him an opportunity to tell his colleagues, “I told you so!” Some people think Justice Roberts plays the long game, accepting short-term losses for Republicans in order to establish principles that will advance conservative goals in the long term. If so, he could offer the liberals a fifth vote for the president in return for an opinion that shrinks standing doctrine back to its pre-’’Massachusetts’’ size. This tempting bit of legal jujitsu might just do the trick.

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