New York Times (Op-ed)
By Linda Greenhouse
April 28, 2016
There are few sights more disconcerting during a Supreme Court argument than smart justices playing dumb.
Any lawyer knows that a word that means one thing in ordinary conversation can be deployed as a term of art and assume a separate meaning in the context of legal analysis. Yet this garden-variety insight seemed to elude Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. during last week’s argument in the big immigration case from Texas. It turns out that the phrase “lawful presence,” understood as a term embedded in the labyrinth of statutes, regulations and practice of immigration law, doesn’t have the obvious meaning it would have in everyday speech, namely that someone is in the country legally and has the right to remain here. Is that really so hard for two of the top lawyers in the United States to understand?
The issue in United States v. Texas is whether the Obama administration has the authority to defer deporting the millions of unauthorized immigrants who are parents of American citizens and of children with permanent resident status. The Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA program, was announced by the Department of Homeland Security in November 2014. Texas and 25 other Republican-led states promptly sued and won an unusually broad nationwide injunction from a federal district judge in Brownsville, Andrew S. Hanen. After dragging its feet for months, the United States Court of Appeals for the Fifth Circuit upheld Judge Hanen’s order in a 2-to-1 decision last November, barely in time for the administration to get its appeal up to the Supreme Court for argument and decision during the current term.
The general takeaway from last week’s argument was that the administration is going to lose by a 4-to-4 tie. A tie affirms the lower court, and because tie votes don’t result in opinions (the justices on either side of the tie are not even identified), the court in that scenario would hand the administration a stinging defeat while sparing the justices the bother of having to explain themselves. Maybe that’s what will happen; if so, the president’s defining immigration initiative will end with an anonymous whimper. (Half of it, anyway; the companion program that defers deportation for those who were brought to the United States as children — DACA, for Deferred Action for Childhood Arrivals — is in effect and is not at issue in the case.)
But a close reading of the briefs and the argument transcript (I did not attend the argument) suggests at least the possibility of a more favorable outcome for the administration. This column is not meant as a prediction. I’ll leave that to others. My more modest goal is to look beyond the conventional wisdom about a case that as much as any other in this term, including the abortion and contraception mandate cases that are now awaiting decisions, puts the suddenly short-handed conservative members of the Roberts court to the choice between their policy preferences and their judicial role.
At the heart of the case, although not in plain view, is a deceptively simple question: Did DAPA change immigration law? If the answer is no — if DAPA represents, albeit on a grand scale, the traditional exercise of executive-branch discretion to set priorities in enforcing immigration law — then the program is both procedurally and substantively valid and the states’ challenge fails. That, unsurprisingly, is the administration’s position.
But if DAPA did change the law — if it depends on “transforming unlawful conduct into authorized lawful conduct,” as the Texas solicitor general, Scott A. Keller, repeatedly described it to the justices — then there is no chance of rescue by the Supreme Court.
Whether DAPA changed the law would seem to be a straightforward question deserving of a straightforward answer. But very little in immigration law is straightforward, starting with the fact that while there are an estimated 11 million unauthorized immigrants in the country, Congress annually appropriates only enough money to deport a few hundred thousand. So discretion on the part of executive branch officials is hard-wired into the system.
The Supreme Court recognized this four years ago in Arizona v. United States, the decision that struck down most of Arizona’s flagrantly anti-immigrant law, S.B. 1070. “A principal feature of the removal system is the broad discretion exercised by immigration officials,” Justice Anthony M. Kennedy wrote in the majority opinion, which Chief Justice Roberts joined. “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” he added. Professor Cristina M. Rodriguez of Yale Law School, in a forthcoming book, describes the system as one of “de facto delegation.”
This is where the justices’ seeming befuddlement with the concept of “lawful presence” comes in, and why the way in which they actually understand the concept matters.
Under the “deferred action” of DAPA, eligible immigrants are informed that the Department of Homeland Security doesn’t plan to deport them during the next three years. Their legal status doesn’t change — that is, they remain technically deportable and are ineligible for most government benefits. No pathway to citizenship opens for them. The designation is nonbinding, meaning that the department is free to change its mind. As a matter of immigration law, an immigrant in this situation is “lawfully present,” a category that also applies to immigrants in any of numerous other situations in which the authorities forgo the right to seek removal.
Under a Reagan-era regulation, such “lawfully present” immigrants receive authorization to work. The work authorization is not part of DAPA, but it flows from DAPA as it flows from any deferral of deportation. (For example, millions of immigrants have received work authorization while in legal proceedings to adjust their immigration status, a time during which deportation is deferred.) Texas law in turn makes drivers licenses available to any immigrant with work authorization. The state’s assertion that it loses money on every license it issues (for a bargain-basement fee of $24) is the basis that the lower courts accepted for the state’s standing to pursue the lawsuit. I’ve written in the past about why the state’s claim to standing is frivolous and contrary to the Supreme Court’s modern precedents on federal court jurisdiction. But during last week’s argument, the debate over standing didn’t seem to go anywhere, and I’d now be surprised if the court ruled against Texas on that ground.
I now think the case stands or falls on whether the court concludes that DAPA changed the law. If “lawful presence” means that an immigrant who was once “illegal” is now “legal,” then that’s a change. Chief Justice Roberts seemed very much to want that to be the answer. He kept invoking “lawful presence” as a spear to poke at Solicitor General Donald B. Verrilli Jr., challenging the solicitor general on the use of the phrase deep in the government’s reply brief. The chief justice told the solicitor general that the government’s brief “says ‘the individuals covered are lawfully present in the United States,’ ” while “less than a page later, you say, ‘Aliens with deferred action are present in violation of the law.’ ” Chief Justice Roberts continued: “Now, that must have been a hard sentence to write. I mean, they’re lawfully present, and yet, they’re present in violation of the law.”
“I actually had no trouble writing it, Mr. Chief Justice,” the solicitor general replied.
Since Chief Justice Roberts had already acknowledged reading the government’s reply brief, I can’t believe he didn’t also read the main brief. (The same goes for Justice Alito, who like the chief justice is always meticulously prepared for the cases being argued.) In both the government’s briefs, the difference between “lawfully present” as a term of art in immigration law and in the ordinary sense of the words is completely clear.
To give the full flavor of what came next, I’ll quote from the transcript at some length.
Mr. Verrilli: “The reason I had no problem writing it is because that phrase, ‘lawful presence,’ has caused a terrible amount of confusion in this case; I realize it. But the reality is it means something different to people in the immigration world. What it means in the immigration world is not that you have a legal right to be in the United States, that your status has changed in any way, that you have any defense to removal. It doesn’t mean any of those things, and it never has. And so at that fundamental level, we are not trying to change anybody’s legal status.”
Chief Justice Roberts: “Lawfully present does not mean you’re legally present in the United States.”
Mr. Verrilli: “Right. Tolerated — ”
Chief Justice Roberts: “I’m sorry, just so I get that right.”
Mr. Verrilli: “Yes.”
Chief Justice Roberts: “Lawfully present does not mean you’re legally present.”
Mr. Verrilli: “Yes.”
At this point, Justice Alito took a swing: “And how is it possible to lawfully work in the United States without lawfully being in the United States?”
Mr. Verrilli: “There are millions of people, millions of people other than the DAPA recipients about whom this is true right now.”
Justice Alito: “I’m just talking about the English language. I just don’t understand it. How can you be –“
Mr. Verrilli: “Well, let me –”
Justice Alito: “How can it be lawful to work here but not lawful to be here?”
And so on. What was going on here on the part of the justices was not a search for information or understanding, but word play. It was an effort to construct a rhetorical smoke screen around the fact that DAPA is neither “an unprecedented unlawful assertion of executive power” nor “one of the largest changes in immigration policy in our nation’s history,” phrases that the state’s lawyer hurled at the program in the opening moments of his argument.
If DAPA is neither of those things, what is it? Clearly, it’s something that the conservative justices don’t like, put in place by a president they don’t much like either. But at the end of the day, is it too much to expect that they are good enough lawyers to see through their own smoke screen and to understand immigration law for what it is, not for what they would prefer it to be? I said earlier that I wouldn’t make a prediction, and this isn’t one. Call it a hope, for the millions of immigrant parents, and also for the Roberts court.
For more information, go to: www.beverlyhillsimmigrationlaw.com