New York Times (Opinion)
By Linda Greenhouse
February 4, 2016
Hard-wired into the Supreme Court’s DNA is the notion that the court doesn’t reach out to decide a constitutional issue if it can resolve a case by interpreting a statute. “The court will not anticipate a question of constitutional law in advance of the necessity of deciding it,” is how Justice Louis D. Brandeis expressed this principle of judicial restraint 80 years ago in a concurring opinion to which the court often makes reference.
So the court’s action two weeks ago in accepting the Obama administration’s appeal in a major immigration case was startling. The surprise was not that the court agreed to hear the case, United States v. Texas, an appeal from a ruling that the president lacked authority under the immigration laws to defer deporting undocumented immigrants whose children are American citizens or lawful permanent residents. It was rather the blockbuster constitutional question that the justices added to the case, a question the court had not been asked, and one that neither of the lower federal courts had even addressed when they ruled on purely statutory grounds against the administration.
This is what the court said in its Jan. 19 order: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.’ “
Wow. The “guidance” is the memo that established the deferred-action program, issued in November 2014 by Jeh Johnson, the secretary of Homeland Security. The Take Care Clause provides that the president “shall take care that the laws be faithfully executed.” It is a constitutional provision that the Supreme Court has hardly ever addressed directly. Justice Antonin Scalia invoked it years ago, in a 1992 decision holding that environmental organizations lacked standing to challenge the adequacy of the Reagan administration’s enforcement of the Endangered Species Act.
The statute’s explicit “citizen suit” provision was not sufficient to authorize a lawsuit for a “generalized grievance,” Justice Scalia wrote in Lujan v. Defenders of Wildlife. It was “obvious,” he said, that “to permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an ‘individual right’ vindicable in the courts is to permit Congress to transfer from the president to the courts the chief executive’s most important constitutional duty, to ‘take care that the laws be faithfully executed.’”
The Lujan decision, one of Justice Scalia’s most important opinions in 30 years on the court, thus used the Take Care Clause to protect a president’s prerogatives. But times change. By transforming an important but still ordinary statutory interpretation case (Does the Immigration and Nationality Act give the president this degree of prosecutorial discretion? Should the “guidance” have been issued as a formal rule under the Administrative Procedure Act? On what basis do the 26 states that brought this lawsuit have standing?) into a major constitutional one, the court turns the Take Care Clause from shield to sword, with the conservative justices brandishing the sword.
The protests I expected to hear from the administration and its allies have not materialized. The message from such progressive organizations as America’s Voice, an immigration advocacy group, seems to be that it’s just as well that the Supreme Court will address the Take Care Clause because the issue might otherwise re-emerge, after a narrow Supreme Court ruling, in the Brownsville, Tex., courtroom of the openly hostile federal district judge, Andrew S. Hanen, who imposed a nationwide injunction against the deferred-action program a year ago. (The states had raised the Take Care Clause in their initial District Court complaint, but Judge Hanen didn’t address it, and neither did the United States Court of Appeals for the Fifth Circuit, which upheld the injunction.)
I understand the strategy. The administration’s job is not to criticize the court but to make its best argument on the law and persuade five justices that it’s right. After all, if the court finds that Congress has given the president sufficient authority for the deferred-action program, there is no Take Care Clause issue to discuss.
Call me a cynic, but I just don’t see the Take Care Clause question as the benign or even neutral act of a court seeking efficiency in clearing up an unsettled issue. For one thing, there’s nothing about this rarely invoked clause that needs settling. (In their response to the administration’s Supreme Court petition, the states wait until page 37 of their 39-page brief even to mention the Take Care Clause.) For another, it’s impossible for me to divorce the court’s action from the ever more strident anti-Obama rhetoric filling the right-wing airwaves and blogosphere.
There has been a concerted effort to portray a “lawless” president, an “emperor of the United States,” in the words of Senator Jeff Sessions, Republican of Alabama. “Federal courts need to stop Obama from flouting the Constitution,” was the headline on a Washington Post op-ed co-written by David B. Rivkin Jr., a Washington lawyer who was a force behind the legal attack on the Affordable Care Act. George F. Will, a Washington Post columnist deeply in tune with the capital’s conservative elite, wrote in a June 2014 column titled “Stopping a Lawless President” that while many presidents seek to enhance their power, President Obama’s “offenses against the separation of powers have been egregious in quantity and qualitatively different.” Immigration was only one item on Mr. Will’s list of the president’s offenses, which included implementation of the Affordable Care Act, welfare, education and drug policy. Republicans in the House of Representatives have frequently mentioned impeachment.
Impeachment aside, Justice Scalia, ever more unconstrained and therefore ever more useful as a barometer of right-wing thought, made his own notable contribution to this chorus. In June 2012, the court decided a high-profile immigration case from Arizona, invalidating several provisions of the state’s recently enacted anti-immigrant statute on the ground that immigration policy was the province of the federal government. Justice Scalia dissented and, reading a statement from the bench, provided his own rationale for the Arizona law.
Ten days earlier, President Obama had announced a program to defer deportation for young undocumented immigrants who had been brought to the United States as children. Yet even though the president’s action had nothing to do with the case before the court, Justice Scalia nonetheless channeled the Republican criticism of the president’s action in his statement from the bench: “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.”
What had come to pass, he continued, was “the specter that Arizona and the states that support it predicted: a federal government that does not want to enforce the immigration laws as written, and leaves the states’ borders unprotected against immigrants whom those laws exclude. So the issue is a stark one: Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws? A good way of answering that question is to ask: Would the states conceivably have entered into the union if the Constitution itself contained the court’s holding?”
He concluded with this red-meat line: “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state.”
In the context of the 2012 election year, this was an amazing public statement by a sitting Supreme Court justice. Am I the only one to think that it explains a good deal about the order the court issued last month, or to wonder whether the court can be unaware of the politically charged discourse its order embraces?
I noted earlier that the Supreme Court has hardly ever examined the Take Care Clause. There was, however, an early sign last term that the clause might be moving from the wings to center stage. In Zivotofsky v. Kerry, a case decided last June, the court upheld the State Department’s refusal to list “Israel” as the place of birth on passports issued to American citizens who were born in Jerusalem, despite an act of Congress directing the department to do so at the individual’s request. With a majority opinion by Justice Anthony M. Kennedy, the court held that the statute was an unconstitutional infringement by Congress on the president’s exclusive power to recognize foreign governments, a power the court said was “essential to the conduct of presidential duties.” Chief Justice John G. Roberts Jr. dissented in an opinion that Justice Samuel A. Alito Jr. also signed. “The court takes the perilous step — for the first time in our history — of allowing the president to defy an act of Congress in the field of foreign affairs,” the chief justice wrote. “The first principles in this area are firmly established. The Constitution allocates some foreign policy powers to the executive, grants some to the legislature, and enjoins the president to ‘take care that the laws be faithfully executed.’ “
There’s a difference, of course, The law at issue in that case was clear, as was the State Department’s defiance of it. In the immigration case, by contrast, the administration argues that the deferred-action program is an application of long-recognized discretion in immigration enforcement policy that dates back to regulations adopted during the Reagan administration. Of course, a court genuinely mindful of principles of judicial restraint would not even need to reach the statutory question, let alone the constitutional one. The states’ claim to injury, let alone the kind of injury that gives them standing to sue for nonenforcement of the immigration laws is even more tenuous than the long-ago claim of the environmentalists, thrown out of court by Justice Scalia’s Lujan decision. (I discussed the issue of the states’ standing in an earlier column.
This is a case that should have been tossed out of Federal District Court in the first instance. Instead, its stakes are now heightened enormously. If the justices approach their task as judges and not as politicians, the administration will easily prevail. It is the Roberts court that now needs to take care.
For more information, go to: www.beverlyhillsimmigrationlaw.com