Gaming Out the Immigration Case As It Heads to the Supreme Court

This article appeared on on November 15, 2015

Nearly a week has passed since the Fifth Circuit affirmed the injunction against President Obama’s executive action on immigration, known as DAPA (Deferred Action for Parents of Americans). After digesting the 70-page majority opinion and 54-page dissent (plus the 11-page DAPA memo that’s an appendix), I can say that there aren’t any real surprises but we should keep in mind the following points as this case moves forward to the Supreme Court:

1. Standing is very important. Have the plaintiffs been hurt by the federal action in a way that gets them into court? If the 26 states simply don’t like President Obama’s policy, that isn’t enough. Both the Fifth Circuit and the district court accepted Texas’s argument that DAPA would force the state to incur the cost of issuing driver’s licenses, which is indeed a direct cost of an executive decision that expands eligibility for various state benefits. Ironically, one of the key precedents supporting the argument for state standing is Massachusetts v. EPA (2007), which found states to have standing to challenge the Bush-era EPA on climate-change (in)actions because, roughly speaking, their coastlines are eroding. Texas’s claim of harm here, if anything, seems stronger and less nebulous.

2. “Justiciability” is similarly crucial. (Indeed, it takes more than half the majority opinion to get past these “threshold” matters.) That is, even if the state plaintiffs are hurt such that they have standing, if a court can’t adjudicate the dispute–because, say, there’s an exercise of prosecutorial discretion that courts don’t review–then the case should be dismissed as “non-justiciable” (as the dissent argues). This is likely to be the point on which the case will ultimately turn; just look at the administration’s immediate reaction:

The Department of Justice remains committed to taking steps that will resolve the immigration litigation as quickly as possible in order to allow DHS to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children.

But the lawsuit doesn't challenge the ability of government to prioritize the deportation of human traffickers over nannies–and indeed immigration authorities have been doing that since time immemorial. Can you shoehorn an entirely new federal program/benefit into that uncontroversial enforcement discretion?

3. The appellate court didn't simply affirm the district court's finding that the executive action violated the Administrative Procedure Act, but also added a further justification, that DAPA exceeds the executive's statutory authority. If the Supreme Court ends up leaving the injunction in place, it doesn't much matter for practical purposes whether it does so because (a) the administration violated the APA by not engaging in notice-and-comment rulemaking, (b) it doesn't have the legal authority under the relevant immigration laws, or (c) it exceeds the president's power under Article II's Take Care Clause (as Cato argues in our amicus brief). The district judge focused entirely on the first (administrative) point, with which the Fifth Circuit agreed but then went on to provide an alternative holding on the second (statutory) point. And the third (constitutional) point looms atmospherically in the background.

For more detailed examinations of the Fifth Circuit ruling, see Josh Blackman's diligent series of posts on standingjusticiability, the procedural claim, the substantive claim, the dissenting opinion generally and on standing and justiciability.

So where do we go from here? The Supreme Court is certain to take the case, but the question is when. Recent practice suggests that for the case to be heard this term, the Court must be in a position to "conference" the case by the end of January. That means that all the briefing must be complete in time for consideration by the justices and their clerks a little before that. SCOTUSblog's sources indicate that we can expect the government to file a cert petition by the end of the week. Texas will then have 30 days to reply. The government will probably discourage its amici from filing briefs because that would give Texas reason to ask for a 30-day extension on its deadline–but Texas could ask for that extension regardless, and the Court grants such requests as a matter of course.

But the government may not actually be in such a hurry. Earlier this year, it delayed in filing its "emergency" motion to stay the district court's February ruling, and then it took a while to decide how to respond to the Fifth Circuit's denial of that motion, ultimately deciding against seeking Supreme Court review at that stage. So it could be that for either political or legal reasons–because it's unsure or dubious of whether it will find five votes at the high court–it won't mind having Texas v. United States pushed into the next term.

That would keep the case alive through the presidential election. Hillary Clinton's response on this issue at the Democratic debate Saturday night was muddled–she thought that the government had already appealed and claimed that DAPA covered the parents of so-called DREAMers, which it doesn't (because the president's own legal advisers said he couldn't go that far)–but she has said previously that she would expand on President Obama's actions.

And, of course, if a Republican wins the White House, he or she could withdraw the DAPA memo, thereby ending the program and mooting the case. Stay tuned.

Ilya Shapiro

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.