Politico
By Josh Gerstein
July 6, 2015
Just
as in virtually every other aspect of their dispute over federal
immigration policy, the Obama Administration and 26 states are sharply
at odds over the impact of
a ruling the Supreme Court issued last week on the final decision day
of the court's term.
The
bottom line in that 5-4 ruling dealt with a topic entirely unrelated to
immigration: whether voters in individual states can make an end-run
around their state legislatures
by setting up a commission to handle redistricting. The court held that
practice constitutional, but in getting to that decision also ruled
that Arizona's state legislature had legal standing to pursue the legal
challenge, even though it didn't ultimately
prevail.
Now,
both sides in the legal fight over President Barack Obama's executive
actions on immigration claim their case is bolstered by the justices'
decision in the Arizona
redistricting decision.
In
a special brief requested by a federal appeals court within hours of
the Supreme Court's ruling, the Justice Department argued that the
Arizona case undercuts the claims
Texas and 25 other state have put forward for why they have standing to
sue the federal government over Obama's decisions to grant quasi-legal
status and work permits to millions of immigrants who entered the U.S.
illegally. Administration lawyers say the
president's moves don't constitute a swipe at states' powers.
"The
features of the legislature’s claim that led the Court to find standing
in [Arizona Independent Redistricting Commission] are entirely absent
from this case. Indeed,
the differences between the claim of injury in AIRC and the claimed
injuries here underscore the weakness of the plaintiff States’
assertions of standing in this case," Justice Department attorneys wrote
in their brief filed just before the July 4th holiday
weekend (and posted here).
"The
ballot initiative directly regulated the Arizona legislature in a
manner that deprived it of one of its asserted core legislative
prerogatives—a prerogative that
was claimed to be grounded in the U.S. Constitution itself. In stark
contrast, the 2014 Deferred Action Guidance does not regulate States at
all, nor does it divest any branch of a State’s government of any legal
authority or invade any 'legally protected
interest' of a State," the feds added.
A
district court judge who blocked Obama's latest round of executive
actions in February found that the states had legal standing because
Texas and others would incur
additional costs, including the costs of issuing drivers' licenses, as a
result of more illegal immigrants being granted "deferred action"
status. But the Justice Department says the states have many ways of
cutting their losses on that front.
"Far
from 'completely nullif[ying]' a state prerogative, the
[administration's] Guidance does not prohibit Texas from increasing the
$24 fee it charges for temporary visitor
driver’s licenses...or from modifying its driver’s licensing regime in
some other way to avoid the costs attributable to its voluntary decision
to tie its state-law subsidy to federal law," the Justice Department
lawyers wrote.
The
Obama Administration's attorneys also suggest that Texas's claims of
financial losses on drivers licenses are chimerical. "Under the States’
heads-I-win-tails-you-lose
theory of standing, Texas would have standing to sue the federal
government whether DHS accords deferred action to an alien or institutes
removal proceedings against the very same alien," the federal
government's lawyers argue.
Texas
and the other states insist that because of the practical impacts of
the deferred action program they have an even better case for legal
standing than the Arizona
legislature did.
"Arizona
State Legislature’s reasoning supports Plaintiffs’ standing, but
nothing in it is necessary for Plaintiffs to demonstrate standing.
Plaintiffs demonstrated their
strong likelihood of success in showing standing based on direct
financial injuries regarding one or more of their driver’s-license
programs," said a brief filed by Texas Solicitor General Scott Keller
(and posted here). "Plaintiffs have standing under principles
that would apply to any non-governmental plaintiff. Plaintiffs’ ample
evidentiary submission on the motion for a preliminary injunction
demonstrated a strong likelihood of success in showing concrete
financial injuries traceable to DAPA and redressable by
the relief they seek."
Both
sides also noted that Justices Antonin Scalia and Clarence Thomas
dissented from the Arizona redistricting ruling and said the courts
shouldn't resolve "[d]isputes
between governmental branches or departments regarding the allocation
of political power." However, Texas pointed out that the Scalia-written
dissent dealt with the issue of fights within a government, not those
between a state and the federal government and
not ones where states are asserting that a specific law has been
broken.
The
5th Circuit U.S. Court of Appeals is scheduled to hear arguments Friday
about the district court's ruling blocking Obama's immigration moves.
It's unclear what influence
the Supreme Court redistricting ruling will ultimately have in the
immigration case, but based on the makeup of the three-judge panel
hearing the case, the Obama Administration still looks like it has
little chance of prevailing at the appeals court: the 5th
Circuit announced last week that two of the three judges who denied a
temporary stay to the administration in May will also be hearing the
substance of the dispute on Friday.
While
a total of 26 states are on Texas's side of the legal battle, 14 other
states have aligned with the Obama Administration to support its
immigration moves.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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