The New Republic
By Simon Lazarus
January 13, 2016
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.”
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.
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.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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