On Immigration, the Supreme Court Sounds More Like Congress

The New Yorker

By Jeffrey Toobin

April 19, 2016

On Immigration, the Supreme Court Sounds More Like Congress 

Supreme Court arguments are starting to resemble Supreme Court confirmation hearings (which it used to be customary to hold for nominees way back in the days before, well, 2016). During confirmation hearings, members of the Senate Judiciary Committee from both parties take turns asking questions. Senators from the President’s party ask softballs, in a sort of direct examination; senators from the opposition party try to throw the nominee off stride with what seems more like cross-examination. Back and forth go the senators, and the questions, until, most of the time, they vote along party lines anyway.

The eight-member Supreme Court works much the same way these days, at least in the most politically charged cases, such as Monday’s argument, in United States v. Texas, over President Barack Obama’s immigration directives. Donald Verrilli, Jr., the Solicitor General, was just a few sentences into his argument in support of the Administration’s position when Chief Justice John Roberts began pummelling him with questions. Verrilli deftly parried the Chief until Justice Sonia Sotomayor offered him a breather. Justices Samuel Alito and Anthony Kennedy then went on the attack, and they were followed by Justice Ruth Bader Ginsburg, who came dashing to Verrilli’s rescue. The pattern recurred for all of the oral advocates. The Justices’ votes may turn out to be surprises (though they rarely are), but their questions are as predictable as the ones asked on the other side of First Street, at the Capitol.

Obama’s executive orders establish priorities for immigration enforcement, and they are intended to give some comfort and resolution to roughly four million of the twelve million undocumented people in the country. They assert, in general terms, that the parents of children born in the United States should not be deported if they pay a modest fee and prove that they have not committed crimes. The case before the Court involves two main legal issues. First, do the plaintiffs—the state government of Texas, joined by the governments of twenty-five other states—have standing to challenge the law at all? Throughout his career, as a lawyer and a judge, Roberts has been a stickler on the standing issue; he has frequently argued that plaintiffs should be thrown out of court unless they can prove that the defendant’s actions caused them a specific, identifiable harm.

So what harm did Texas suffer? Texas argued that because it has a policy of giving driver’s licenses to people who are in Texas legally, for a fee that doesn’t cover the cost of doing so, and because the Obama policy will make about half a million undocumented Texans legal, providing all those licenses will be a harm. As Roberts put it in a question to Verrilli: “Because they have what seems to me a perfectly legitimate policy, is they want driver’s licenses to be available to people who are lawfully present here. And if you, the Federal government, say, well, these people are lawfully present, that means they have to give a driver’s license to however many of them, more than half a million people, who would be potentially eligible for them.” But as Verrilli pointed out, it’s not clear whether the Obama policy would require Texas to give driver’s licenses to the people who are affected by the executive order. That’s unsettled, and the entire basis of modern standing doctrine is that a speculative injury does not impart standing; only an actual injury does.

The other issue in the case is whether President Obama had the authority to issue his directives—or whether, in doing so, he impinged on the right of Congress to pass laws. The President’s directives asserted that the individuals covered are “lawfully present” in the United States. Texas argued that only Congress, not the President, can determine who is lawfully present. But Verrilli made the point that the directive simply decided which people the government would not try to expel. In doing so, he argued, the Administration was doing nothing more than establishing its enforcement priorities, which is a core function of the executive branch. This is what Administrations do. The country does not have the resources to deport everyone who is in the country unlawfully, so it make judgments about its priorities. What was more, as Justice Elena Kagan pointed out in a question, the whole issue of “lawfully present” was just semantics. “Could you have done the exact same thing without using that phrase?” she asked Verrilli. Of course, he said.

So the argument went, with the Democratic and Republican appointees playing their self-assigned parts. The argument offered insight into why the Republicans are fighting so hard to keep Merrick Garland, President Obama’s nominee, off the Court. Garland may be a moderate, but he also passed muster at the Obama White House—and that’s enough to make Democrats welcome him and Republicans fear him. For a Court that behaves increasingly like Congress, it looks like the identity of the appointing President, as much as the identity of the Justice him or herself, is all you need to know.

For more information, go to:  www.beverlyhillsimmigrationlaw.com