SCOTUS, Let’s DEAL with it..!
So many things happening in politics, especially this week. 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 U.S. v. Texas.
Recall that back in November 2014, President Obama proposed to make it easier for many individuals now living in the U.S. 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 DHS 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 #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.
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 (#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 (#2) did seem to intrigue Justice Anthony M. Kennedy, it was downplayed 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.) And this decision is what they are pressing for…”playing Court.”
Writing will be finished tomorrow.