The conventional wisdom that United States v. Texas would be one of the handful of 4-4 ties in the post-Scalia era looks pretty wise indeed. After an hour and a half of argument and huge masses of demonstrators outside the courthouse – more people than I’ve ever seen – that result would be anticlimactic: DAPA remains enjoined, without a Supreme Court opinion.
That’s a good thing for two reasons: 1) in my view, President Obama’s executive action goes beyond executive power under the immigration (and administrative) laws and 2) because the next president will almost certainly rescind (if a Republican) or expand (if a Democrat) the program – mooting or transforming the case. While the government’s supporters had been hoping that the 26-state lawsuit would be dismissed for lack of standing – perhaps Chief Justice John Roberts could be swayed to that technical solution – there do not seem to be five votes for that solution either.
But even though we aren’t likely to get a real decision, this morning’s argument highlighted the importance of the case beyond the immigration context, raising key separation-of-powers issues. As the Obama administration has taken executive power to heights it has never been before, the U.S. solicitor general at one point mentioned “the change in federal law” that DAPA represents – and, of course, it takes a new law passed by Congress to change an old law. Justice Kennedy thus asked about a limiting principle – echoing past arguments over Obamacare and other battles over federal power – and how to define “the limits of discretion.”
With respect to immigration, Texas’s solicitor general concisely boiled down the case to a matter of transforming deferred action (a non-binding decision not to seek removal) into a grant of legal status. That’s the nub: much as we would want an immigration system that makes sense, that allows peaceful people to be productive members of society, that’s not what we have, and the president can’t just use his pen and phone to fix it.
As Justice Robert Jackson put it in his canonical statement about constitutional structure in the 1952 Steel Seizure Case, courts must be last, not first, in giving up on the separation of powers. Just because we might like a policy or think that its costs outweigh its benefits, doesn’t mean that it’s constitutional.