On Friday the Supreme Court will have its first crack at considering, in its weekly internal conference, whether to give President Barack Obama a shot at ever implementing his November 2014 decision to shield from deportation, for three years and on a case-by-case basis, over four million undocumented parents of U.S. citizens and legal residents. At the time, the Obama White House framed the order as designed to “prioritize deporting felons not families.”
The Obama administration has requested review of the adverse November 2015 decision by a panel of the Fifth Circuit Court of Appeals in New Orleans, led by an ostentatiously hostile duo of federal judges, to enjoin his immigration initiative. Whether the Supreme Court opts for review—and does so on Friday or soon thereafter—will determine whether the case can be resolved before the justices leave town at the end of June for their summer recess—and hence, whether the Fifth Circuit’s nationwide injunction stays in place through the end of Obama’s presidential term.
The answer to this question, and the ultimate fate of the administration’s program—officially called the Deferred Action for Parents of American Citizens and Permanent Residents, or DAPA—will turn on how the Court handles, as a precedent, its blockbuster decision last June, King v. Burwell, which effectively saved another signature Obama legacy initiative, the Affordable Care Act. In King, Chief Justice John Roberts, writing for a 6-3 majority, rejected an interpretation devised by conservative legal advocates to “drive a stake through the heart of Obamacare.” King’s immediate impact for health reform was certainly important, but its long-term significance could be broader and greater. This is because Roberts spelled out an elaborate reset of the Court’s role in politically charged conflagrations over complex and consequential statutes like the ACA and the immigration laws—vis-à-vis Congress, the executive branch, legal and political activists, and, by implication, litigious state governments.
How seriously the Court takes his King rationale, as a guiding template for future decisions, holds the key to the viability of DAPA. It will also be crucial to the survival of other Obama priorities, notably the EPA’s Clean Power Plan and, yet again, the ACA, currently battling another complaint about low-income health insurance subsidies filed by the Republican-controlled House of Representatives.
Roberts’s reset involved three components. First, he asserted that, henceforth, the Court, not executive agencies, will get the decisive say in construing provisions of “deep economic and political significance ... central to ... statutory scheme[s].” Surprised experts read this as a “power-grab,” shelving a longstanding rule of deference to “reasonable” agency interpretations of Congress’s intent. Given the Court’s 5-4 conservative majority, this self-empowerment might portend ominous consequences for progressive programs.
Yet the chief justice also laid down two additional, interrelated markers that, if followed, could mitigate such concerns—in particular, anxiety that the Court will let stand the Fifth Circuit majority’s dispatch of DAPA. Conspicuously, he accentuated a design to ward off perceptions that the Court is becoming politicized by signaling inhospitality to future “implausible” cases fabricated to urge courts not to “respect the role of the Legislature” and “undo what it has done.” In addition, Roberts unsheathed what Yale law professor Abbe Gluck termed a “game-changing” and generous approach to interpreting major laws—i.e., to focus on Congress’s overall “legislative plan,” rather than discrete textual words or phrases in isolation.
As I have written, Roberts’s thinly veiled warnings against political attacks dressed up as legal claims follow from his concern, broached in a November 2014 speech, that “polarization” in the political branches could “spill over and affect” the Court. Of course, that spillover perception has already reached epidemic levels. For the first time since the 1930s, the likely 2016 Democratic presidential nominee has made Supreme Court appointments a major issue, warning that “conservatives are wholeheartedly relying on Republican-appointed judges to undo progressive achievements.” Republican candidates vow litmus tests that would preclude any nominee who, like Roberts or Justice Anthony Kennedy, might in some cases decline to rubber-stamp the political agenda of the party’s right-wing. Mainstream media accounts now frequently view even the lower federal courts through the lens of the party affiliation of individual judges’ nominating presidents.
If Roberts stays focused on shielding the judiciary from such perceptions, the Court’s response to the Fifth Circuit’s DAPA decision should be straightforward. It will accept review and dismiss the case on the ground that the party that filed it, the state of Texas (on behalf of 25 similarly Republican-led states), has asserted no injury that gives it legal “standing” to get its grievance into court. The alleged injury on which the lower court judges relied to allow Texas to challenge DAPA is that, under Texas law, recipients of deferred action status may obtain state-subsidized drivers’ licenses, costing the state $130.89 each.
To be sure, state governments have standing to vindicate genuinely “sovereign” interests in court, and appropriately so. But, as numerous experts have noted, well-established doctrine bars state or local entities from seeking judicial redress simply for incidental, self-engineered (Texas is free to repeal its subsidy) monetary loss from a federal policy change, certainly not on such a trivial scale. From the standpoint of defusing perceptions of politicization, retaining barriers to standing for Texas’s DAPA challenge will have a more systematic—and consequential—impact than the rejection of last term’s attempt to cripple the ACA. Ruling otherwise will license state or local politicians to put virtually any beef with the feds, however politically driven, on the docket of a convenient lower federal court, and, ultimately, the Supreme Court. Government programs at all levels could be threatened with gridlock—just as national immigration enforcement policy is gridlocked by this lawsuit.
As Texas’s own governor, Greg Abbott, recently the state’s attorney general, said of his approach to his former job, “I go into the office, I sue the federal government, and then I go home.” Abbott’s serene confidence in the efficacy of simply filing a complaint rested, no doubt, on the reputation of the Fifth Circuit, which covers cases originating in Texas, as the nation’s most right-leaning appellate court. This was candidly acknowledged by Edward Blum, peripatetic architect of challenges to legal protections for racial minorities, who said, “Advocates [seeking] high-profile, conservative outcomes [have] incentive to go the Fifth Circuit.”
In the pending case, Abbott’s forum-shopping paid off big-time, producing favorable decisions by Fifth Circuit judges well-known for their hostility to immigration and to President Obama himself. In effect, they empowered Abbott to shut down national immigration policies not only in Texas, but nationwide, including multiple jurisdictions that have filed friend-of-the-court briefs strongly supporting DAPA and outlining its benefits for their economies.
If the Court relaxes current standing strictures and reaches the merits of Texas’s claim, the administration’s defense of DAPA’s legality will also be reinforced by Roberts’s King v. Burwell opinion—specifically, his linchpin holding that “a fair reading of legislation demands a fair understanding of the legislative plan.” Implicitly, though pointedly, this focus on Congress’s “plan” sidelined the hyper-literalist brand of “textualism” long touted by Justice Antonin Scalia and conservative allies—frequently used to justify narrowly reading individual words or phrases out of context (as they did in King v. Burwell itself).
In the case of the immigration laws, the crux of that legislative plan, pervasively manifest throughout federal immigration statutes, is to delegate broad discretion to the executive branch as to how to tailor enforcement priorities to funding resources, as limited by Congress, sufficient to remove only a fraction of the total number of undocumented immigrants (400,000 annually, out of a total of more than 11 million). As recently as 2009, a House of Representatives Committee Report specifically confirmed Congress’s direction to the Department of Homeland Security not to “simply round up as many illegal immigrants as possible,” but to ensure “that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.”
The DAPA directive simply sets out guidelines for conferring “deferred action” treatment in accord with enforcement priorities perfectly matching that instruction. Authorization for such deferred action recipients to work and receive work-related benefits arises, not from DAPA, but from longstanding regulations (promulgated by the Reagan Administration) and statutory provisions—a fact recognized two decades ago by the Supreme Court, and flatly ignored by the lower court judges who have made this work-authorization consequence the nub of their argument for halting DAPA in its tracks.
Three and a half years ago, the Court outlined—and endorsed—the conceptual framework undergirding the administration’s interpretation of its immigration enforcement authority. A 5-3 decision in 2012, in an opinion written by Justice Kennedy and joined by Chief Justice Roberts, emphasized that “broad discretion” for “immigration officials [is] a principal feature of the removal system, [including] whether it makes sense to pursue removal at all,” based on, among multiple factors, “immediate human concerns” and “foreign policy.” If the Court takes, as its lodestar for evaluating DAPA, the plan manifest over decades of legislating and administering the immigration laws, it is unlikely that votes will be found to invalidate it—in the (also unlikely) event that a majority will grant standing and reach the merits of Texas’ case.