January 19, 2016

"The Supreme Court said Tuesday that it would consider a legal challenge to President Obama’s overhaul of the nation’s immigration rules."

"The court, which has twice rejected challenges to Mr. Obama’s health care law, will now determine the fate of one of his most far-reaching executive actions," the NYT reports.

Why did the Court take this one, United States v. Texas, No. 15-674?
In their written arguments before the court, the states acknowledged that the president has wide authority over immigration matters, telling the justices that “the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” Their quarrel, they said, was with what they called a blanket grant of “lawful presence” to millions of immigrants, entitling them to various benefits.

In response, Solicitor General Donald B. Verrilli Jr. told the justices that “lawful presence” is merely what has always followed from the executive branch’s decision not to deport someone for a given period of time. He added that the consequences of allowing immigrants to be lawfully present were positive. “Without work authorization,” Mr. Verrilli wrote of the people eligible for the program, “they are more likely to work for employers who will hire them illegally, often at below-market wages, thereby hurting American workers and giving unscrupulous employers an unfair advantage.”

Much of the briefing so far has been focused on the threshold question of whether the states have suffered the sort of direct and concrete injury that gives them standing to sue....
There is special reason to think the states have standing, after what the Court did in Massachusetts v. Environmental Protection Agency, allowing the state to challenge the EPA's idea that the Clean Air Act didn't refer to greenhouse gases, back in the days when the Bush administration wasn't doing enough about global warming to suit the political party in power in Massachusetts. The tables are turned now, but the standing doctrine precedents are what they are. Fortunately for Obama, Massachusetts v. Environmental Protection Agency is a murky mess of a case.

United States v. Texas coming up for oral argument and decision will add some interesting dimension to the issue of immigration and presidential power in this election year.

ADDED: Just a snippet from Chief Justice Roberts's dissenting opinion in Massachusetts v. Environmental Protection Agency to give you a sense of how the majority muddled standing doctrine where a state is a plaintiff challenging the work of the executive branch:

[The majority] asserts that “States are not normal litigants for the purposes of invoking federal jurisdiction,” and that given “Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”...

Relaxing Article III standing requirements because asserted injuries are pressed by a State, however, has no basis in our jurisprudence, and support for any such “special solicitude” is conspicuously absent from the Court’s opinion. The general judicial review provision cited by the Court, 42 U. S. C. §7607(b)(1), affords States no special rights or status. The Court states that “Congress has ordered EPA to protect Massachusetts (among others)” through the statutory provision at issue, §7521(a)(1), and that “Congress has . . . recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” The reader might think from this unfortunate phrasing that Congress said something about the rights of States in this particular provision of the statute. Congress knows how to do that when it wants to, see, e.g., §7426(b) (affording States the right to petition EPA to directly regulate certain sources of pollution), but it has done nothing of the sort here. Under the law on which petitioners rely, Congress treated public and private litigants exactly the same.

Nor does the case law cited by the Court provide any support for the notion that Article III somehow implicitly treats public and private litigants differently. The Court has to go back a full century in an attempt to justify its novel standing rule, but even there it comes up short. The Court’s analysis hinges on Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) —a case that did indeed draw a distinction between a State and private litigants, but solely with respect to available remedies. The case had nothing to do with Article III standing....

The Court asserts that Massachusetts is entitled to “special solicitude” due to its “quasi-sovereign interests,” but then applies our Article III standing test to the asserted injury of the State’s loss of coastal property....

It is not at all clear how the Court’s “special solicitude” for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms. But the status of Massachusetts as a State cannot compensate for petitioners’ failure to demonstrate injury in fact, causation, and redressability....
ALSO: There seems to be a good chance of a majority vote composed of completely inconsistent positions — the 4 liberals saying there is standing and upholding what Obama did and at least one more vote — maybe 4 more votes — saying there is no standing and not reaching the merits. Justice Kennedy was in the majority in Massachusetts v. Environmental Protection Agency, so maybe he'll be the only dissenter, finding standing and then disagreeing on the merits. But why grant cert. if that's where they are going? To narrow standing doctrine? Or... here's what makes sense: There could be a 5-person vote for standing, consisting of the same 5 in Massachusetts v. EPA, so the merits will be reached. Then Kennedy votes with the Massachusetts v. EPA dissenters on the question of presidential power and Obama loses.

43 comments:

David Begley said...

We already know how RBG EK SS SB will vote.

Sebastian said...

“the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” But not to forbear from removing a whole class of law breakers on a collective basis.

damikesc said...

I love that if they don't have work visas, they will be paid less than American workers.

As if H1 visa don't do that already...

Michael K said...

Greg Abbot has raised the possibility of another alternative to executive overreach.

The plan lays out nine specific proposed amendments that would:

Prohibit congress from regulating activity that occurs wholly within one state.
Require Congress to balance its budget.
Prohibit administrative agencies from creating federal law.
Prohibit administrative agencies from pre-empting state law.
Allow a two-thirds majority of the states to override a U.S. Supreme Court decision.
Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law
Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
Give state officials the power to sue in federal court when federal officials overstep their bounds.
Allow a two-thirds majority of the states to override a federal law or regulation.


It may depend on whether the Court is willing to modify and reduce the power of the executive to violate the tenth amendment.

Static Ping said...

Muddled Supreme Court decisions? No way!

Hagar said...

“Without work authorization,” Mr. Verrilli wrote of the people eligible for the program, “they are more likely to work for employers who will hire them illegally, often at below-market wages, thereby hurting American workers and giving unscrupulous employers an unfair advantage.”

So, why not put some effort into charging and prosecuting such "unscrupulous employers" as the administration is supposed to do under the Constitution?

Laslo Spatula said...

The Court will rule 5-4 in favor of Obama and immigration.

Trump will use that opportunity to say he will only appoint Supreme Court Justices who put America First.

Perfect opportunity for him to introduce the topic of what kind of Justices he would appoint, as opposed to Hillary.

Allays one fear of conservatives, shores up his base.

Yep.

I am Laslo.

MikeR said...

By the way, what's with Bruce v. Samuels? FantasySCOTUS https://fantasyscotus.lexpredict.com/case/list/
thought sure that the Supreme Court would reverse (6-3, 7-2), and they affirmed 9-0. How common is that kind of thing, and are there factors that make it more likely?

Bushman of the Kohlrabi said...

Borders Schmorders.

What are they good for?
Absolutely nothing
Say it again, y'all

who-knew said...

Whether the application of "enforcement discretion" can apply to a blanket amnesty for hundreds of thousands people is at least debatable (although I think it should be clearly out of bounds). But that is a negative action, the positive action of granting work permits to people who are by the letter of the law ineligible for them is clearly and undeniably illegal. Unfortunately, I have very little faith that our current robed rulers will attempt to enforce the law. And worse, I have no faith that it means the Supreme Court has had a sudden revelation that we are a nation of laws and they government must be held to account just like the little people. It will just be that odd case where the preferences of the court happen to line up with the actual law. We will still be living in an arbitrary system of rule by bureaucracy and entrenched interests.

Hagar said...

I think there is an argument that Democrat policy actually is running a protection racket for these "unscrupulous employers."
Now, why would they do that?

Ann Althouse said...

"Muddled Supreme Court decisions? No way!"

It's a matter of degree. I have to teach this case every year, often more than once. It's genuinely awful. I hate inflicting it on students. It's perhaps the most annoying thing I'm forced to cover in conlaw1. And I'm very comfortable teaching the weirdnesses of Supreme Court constitutional law decisions, including the gaps and the abstruseness and the finessing. I normally find delight in such things, or I would lose my mind.

Ann Althouse said...

Frankly, I would experience it as a big personal favor if the Court would overrule that case.

tim maguire said...

Ot's hard ot see how the state shouldn't have standing if the government's action costs them money. But then, I'm sick of seeing standing doctrine used as a way to deny redress for governmental abuses of power.

Larry J said...

Long ago, I gave up the notion that the supreme court is in any way actually bound by the Constitution or that they give a damn about individual freedom.

The Godfather said...

When Obamnesty was issued, it was accompanied by a DOJ legal memo that purported to justify it. The memo acknowledged that prosecutorial discretion is supposed to be exercised on an individual basis, not on a class basis. Yet the memo concluded that this amnesty program was OK. I wasn't persuaded then and I am not now. But I might be wrong.

But granting what in effect is legal status doesn't seem to be arguably lawful. The rationale that not granting work permits would be a hardship for people who should 't be here at all doesn't pass the laugh test.

Birkel said...

How does working at minimum wage do any less to "hurt() American workers" than working below minimum wage? In either case there is downward pressure on wages for Americans who would otherwise prefer to work at any number above minimum wage.

Verrilli, Jr is economically illiterate if he believes that foreigners taking jobs at minimum wage does not "hurt() American workers".

Jim McKee said...

Do anyone have any thoughts on the request for briefing on the "taking care" clause? What, if anything, does that suggest about how the justices are lining up?

Bruce Hayden said...

Interesting case. No expert (esp. compared to Ann), but I think that it would be hard to deny standing here in view of the MA v EPA case. And the Administration seems to be arguing that they should be able to force states to spend money, or change their laws, as long as it isn't that much money.

Still, my views here, not surprisingly, are directly counter to the NYT. What the Administration did here was to try to do rule making without going through the Administrative Procedures Act (APA) required process of Notice and Comment. They did this by moving all discretion to the top of the hierarchy, denying it at the bottom, which is where it has traditionally been implemented. Normally, the hearing officers have some discretion to deport or not deport people, based on their view of the circumstances. The Administration has stated that they no longer have this discretion because the President has used it to deny deportations in certain situations (i.e. being the parent of undeportable anchor babies, permanent aliens, and maybe even some "Dreamers", which is arguably a very bad idea, incentivizing more women to come here to have their babies, so that they can stay too).

And, you need to keep this in mind - the Administration could have just gone through the APA rule making process. The obstructionist Republicans in Congress couldn't have done a darn thing about it. It would have just taken a bit longer. (Which, of course means that the Administration is lying through its teeth (again) about their need for this). They are asking the Court to essentially allow them to bypass the rule making process that Congress set up, and that is used for the rest of the federal govt., because they don't want to bother with it. And, that is the other part of the case, whether the President can bypass the clear intent of Congress in regards to rule making, whenever it pleases. And, yes, they seem to be doing something very similar with the President's gun control initiatives at the first of this year. And, notably, nothing about bypassing the APA made it into the NYT article.

eric said...

Why do we still talk about these things as if American law and the constitution can be objectively deduced? We know the Supreme Court is entirely political now and what the constitution says is besides the point.

traditionalguy said...

Uh oh. Chief Justice Roberts may finally rule against Tyranny...or will it still just be that old devil Taxing Power allowing complete Tyranny on demand again?

Birkel said...

"[The President] shall take Care that the Laws be faithfully executed...."
ARTICLE II, SECTION 3

Asking for briefs on this particular point is interesting, Jim McKee. However, I think the Court must ask for a briefing because the entire fight is whether and how the POTUS must "faithfully execute()" the duly passed laws of Congress and it would be impossible to render a judgment on the second half of the above-quoted phrase without also considering the first half.

So it's got little predictive power, I expect.

I would love to read other's respective thoughts on this issue.

Bruce Hayden said...

Why did the NYT concentrate on standing, and not bypassing the APA? I think because they know that aiming at bypassing the APA is a losing battle. Overall, I think that the left would prefer there to be much less judicial review of federal govt. actions by the courts. So, they would probably be as happy as clams if the MA v. EPA case could be cut back a bit.

I also think that it was quite important for the Administration (and other right thinking leftists) if this case got reversed by the Supreme Court. And all they needed to get it before the Court were four right thinking leftist Justices (which they coincidentally have) to vote for Cert. At this point, they can't lose, since MA v EPA is the law of the land already, and the injunction by the trial court is nation wide already. Not a lot of difference here between 5th Circuit precedent and Supreme Court precedent, esp. since it is likely fairly easy to pick the circuit for much of similar litigation.

So, if those four right thinking leftist Justices get a fifth vote somehow, my guess is that the case is reversed based on standing and limiting the MA v EPA case. Sure, that would make it a bit harder for states to get cases against the federal govt. into (federal) court, but so what? Standing is much easier than addressing the APA issues, where I suspect that they might even lose one of their leftist votes (my guess would be Justice Breyer, but maybe also Justice Ginsburg).

It should be interesting.

F said...

IIRC, Justice Sotomayor in a prior life argued immigration before the Supreme Court. And she clearly has a vested interest in Hispanic immigration. Should she recuse herself?

cubanbob said...

I'm just waiting to see which Republican candidate is going to state that 12.01 pm 01/20/16 he will sign an executive order revoking every rule, regulation and presidential order issued by the Obama Administration followed by a presidential order barring the agencies from promulgating any new regulations for the duration of his term.

PB said...

Interestingly, the original federal court judge ruled narrowly that is was a failure to properly publish rules for review, but the appeals court expanded the sanction to declare Obama's entire executive order illegal. The liberals on the court will have to really perform gymnastics to appose this one. It should be highly entertaining.

HoodlumDoodlum said...

Ann Althouse said...It's a matter of degree. I have to teach this case every year, often more than once. It's genuinely awful. I hate inflicting it on students. It's perhaps the most annoying thing I'm forced to cover in conlaw1.

Where's your compassion Professor, where's your empathy?? Poor ol' Massachusetts had a problem and the big bad Bush Admin wouldn't help, so in the interests of compassion for the good people of that state (to say nothing of Gaia/Mother Earth) the Court HAD to find a way to grant standing and help out. FEEL the need, FEEL the pain of the petitioners, and it's all clear--if you try to THINK through, or rely on LOGIC, or REASONING, or any such cold-hearted twaddle of course you'll be frustrated--of course it'll seem wrong!

Open up your heart, Professor, and let the power of empathy fill it up--you'll see, it'll be all better, then.

Levi Starks said...

This suit is a mistake.
It will not end well.
Not only will it not overturn the President's executive action,
The prevailing majority will in fact write an opinion which will in effect make permanent the action taken by Obama.
Obama has figured out how to create legislation out of thin air, and conservatives are playing right into his hand.
Just you wait and see.

mccullough said...

Very relevant to this case is that Obama tried and failed to get this passed through Congress.

Static Ping said...

Ann, I can really appreciate the frustration when trying to teach a mess of a case. I regularly have to provide kludge solutions that I don't like, but the kludges work and the proper solution is impossible in the short-term (and occasionally longer).

That said, when the Supreme Court provides these muddles, it becomes clear to more and more people that the court is politicized and many of the rulings are reasoned backwards from the desired conclusion. It truly brings the legitimacy of the court into question, given if we wanted a branch of government that voted based on what they wanted, we already have one in Congress and at least we get to vote for them. It also brings into question the value of the Constitution, which if lost brings into question the entire concept of the democratic experiment not to mention conlaw in general.

HoodlumDoodlum said...

Static Ping: Yup, exactly.

Try to phrase your comment in the form of feelings, though, something like "when the Court blatantly abrogates its responsibility to use solid reasoning and existing statutes and cases to reach a decision it makes me feel BLANK."
You might say "fearful for the future of our nation" or "bad for law Professors who have to teach the case," or something like that, but be sure to use the language of emotion, like a therapist would. "When you do X I feel Y." You can do it!

Gahrie said...

It's genuinely awful. I hate inflicting it on students. It's perhaps the most annoying thing I'm forced to cover in conlaw1

It is still not as bad as Roe V Wade.

Gahrie said...

I mean seriously, aren't you the least bit embarrassed when you have to teach Roe?

Ann Althouse said...

"Do anyone have any thoughts on the request for briefing on the "taking care" clause? What, if anything, does that suggest about how the justices are lining up?"

I would relate it to Justice Scalia's discussion of the "Take Care" clause in connection with limiting standing in Lujan v. Defenders of Wildlife, warning against "convert[ing] the undifferentiated public interest in executive officers' compliance with the law" into something that can be vindicated in court is "to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3." It puts the courts in "a position of authority over the governmental acts of another and co-equal department" and makes them "virtually continuing monitors of the wisdom and soundness of Executive action.'"

I haven't looked at the briefs, but that's the connection to standing doctrine. I'm sure it relates to the substantive question as well. The idea would be that this is all in the President's purview.

Sammy Finkelman said...

There's one problem:

Internal enforcement of immigration laws is itself unconstitutional.

If you read the constitution carefully.

http://constitutioncenter.org/constitution/full-text

Article I Section 8 gives Congress power over naturalization but not
immigration.

Everybody assumes so, but it is not so. A textualist approach would not
read this into it.

Article I, Section 8 Clause 4:

The Congress shall have Power... To establish an uniform Rule of
Naturalization, and uniform Laws on the subject of Bankruptcies
throughout the United States;


There's nothing here about immigration.

The same clause gives Congress power over bankruptcy. That does not give
Congress the right to write a commercial code.

Then there's the Tenth Amendment.

Should you still have any doubts, Article I, Section 9, Clause 1, clearly seems to indicate the matter of immigration is a state power:

http://www.archives.gov/exhibits/charters/constitution_transcript.html


The Migration or Importation of such Persons as any of the States now existing
shall think proper to admit, shall not be prohibited by the Congress prior to
the Year one thousand eight hundred and eight, but a Tax or duty may be imposed
on such Importation, not exceeding ten dollars for each Person.

In the same way, it only has power over bankruptcy, but not contracts.



Sammy Finkelman said...

Congress can contriol the border.

damikesc said...

“the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” But not to forbear from removing a whole class of law breakers on a collective basis.

Didn't courts rule against AZ because they were "infringing" on the Executive's power over immigration rules?

I'd hope they'd at least demand that the Executive ENFORCE immigration rules.

Progressives really don't want to think about where widespread ignoring of laws by the President will lead us.

Sammy Finkelman said...

Daily comment by Jeffrey Toobin in the New Yorker:

http://www.newyorker.com/news/daily-comment/an-ideological-scramble-on-immigration-at-the-supreme-court

This covers only one issue: standing, and not too well..

Gahrie said...

Should you still have any doubts, Article I, Section 9, Clause 1, clearly seems to indicate the matter of immigration is a state power:

http://www.archives.gov/exhibits/charters/constitution_transcript.html


The Migration or Importation of such Persons as any of the States now existing
shall think proper to admit, shall not be prohibited by the Congress prior to
the Year one thousand eight hundred and eight, but a Tax or duty may be imposed
on such Importation, not exceeding ten dollars for each Person.


Actually, your citation argues that immigration is either a federal power, or a shared power. The Congress must have the power to control immigration, or why was this clause (that limits such a power) even necessary? It also implies that Congress has sole control over immigration, because after 1808, Congress apparently can do that which this clause seeks to prevent.

I would argue that this clause gave Congress and the States a shared power over immigration until 1808, after which Congress has the sole power over immigration.

Sammy Finkelman said...

Congress has the power to regulate foreign commerce, so that would give it a right to proohibit the slave trade.

What it doesn't have is internal enforcement power.

Not even the Know Nothing Party in the 1850s thought that, Or even taht Congress could prohibit any immigration.

Gahrie said...

Migration implies immigrants, importation implies the slave trade. The clause prohibits Congress from acting to prohibit either until 1808, which surely means that Congress can act in both areas afterward.

Gahrie said...

Congress has passed many laws regulating immigration, such as laws to prohibit the immigration of Asians, going back at least to the 1880's. In 1924 Congress passed a law prohibiting the immigration of Asians and Arabs.

Static Ping said...

If the federal government cannot control immigration, then it is incapable of defending the country from invasion, something that is explicitly required. A foreign government could simply export sufficient numbers of its people to tip democracy in their favor and force a surrender through the ballot box. It is difficult to imagine a country sufficiently and rightfully paranoid about foreign-born Presidents that would prohibit immigration control if deemed necessary.