The great immigration showdown is finally here. Today, the Supreme Court hears ninety minutes’ worth of oral arguments in United States v. Texas, conservatives’ challenge to President Obama’s executive orders on immigration policy.
The court may decide to dodge the bullet rather than bite it, though.
They have that choice because there are, at heart, two major issues at stake in the case: first, whether Obama exceeded his executive authority, and second, whether states can sue him if so.
Normally, that second question—whether a party has standing—is the kind of thing that only lawyers care about. Standing is a requirement for any lawsuit, and it is at issue in many of them. But standing rarely makes the headlines, because it’s boring to ask whether we should even be asking the question the case is asking. Most non-lawyers would say, Get to the substance, already.
In this case, though, standing is substance. Anyone who watches a Republican debate, knows that immigration policy is a hot issue, and a huge mess. In theory, according to the Immigration & Nationality Act (INA), all 11 million “undocumented immigrants”/ “illegal aliens” (you can usually tell what someone thinks based on which term they use) should be immediately deported from the United States.
In practice, however, only Donald Trump thinks that should really happen, and Trump, of course, is nuts. It would be enormously expensive, disruptive, and cruel to deport so many people at once. Families would be torn apart, and a massive system akin to a police state (internment camps included) would have to be set up, at a direct cost of an estimated $166 billion and an indirect cost of billions more in economic disruption.
As a result, for decades, the federal government has prioritized whom to deport and when. But who gets caught and who doesn’t is often arbitrary, with the government acting like a fisherman with a tiny net, grabbing a few fish at random but letting more slip away. Indeed, progressives have complained that deportations have actually increased under Obama, who is compelled to uphold the existing law.
Surely there should be some method to the madness. What’s needed is systemic reform to balance the country’s interests in controlling immigration and the country’s interests in not destroying families or spending billions to build concentration camps.
Not in this divided government, however. Comprehensive immigration reform has stalled again and again, most recently in 2013, when a bill with support among conservatives and liberals died in the House due to Tea Party nativist fears.
That is why in 2012, and again in 2014, Obama put into place two administrative policies to attempt to rationalize and prioritize deportations actions. Those policies, DACA and DAPA, would effectively de-prioritize (“defer action” in their terms) about 1.2 million and 4 million people, respectively. For three years, they’d effectively be off the deportation list.
Republicans hate this. As evidenced by Trump’s rise, a significant portion of the Republican base really does want to deport 11 million people. The last thing they want is to grant any kind of legal or quasi-legal status to half of them. And so they say that DACA and DAPA represent huge overreach in the imperial presidency of Barack Obama.
But what can they do about it?
Here’s where standing comes in. Texas, joined by 24 other states, has said that it will suffer monetary harm if these policies are enacted—specifically, the cost of issuing driver’s licenses to all those now-quasi-legal illegal immigrants.
Of course, that monetary harm isn’t the real reason they’re suing. They’re suing because they’re Republican-led states (15 Democrat-led ones have filed an amicus brief on the other side) and they detest these policies. But this is how standing works all the time. In my lawyer days, I remember writing a standing brief for an environmental group trying to stop a mining operation, based on half a dozen people who wouldn’t be able to go hiking if the mine were built. Of course that wasn’t the real reason the groups opposed the mine, but it was enough to get through the standing question and on to the merits.
United States v. Texas is a little bigger than that, though. If Texas succeeds, then theoretically any state could sue the federal government to oppose a policy it doesn’t like: an environmental policy, a trade policy. All federal actions impose some costs on the states; is there anything that they couldn’t challenge?
Perhaps that’s why the district court’s opinion took 50 pages to grant standing to Texas, providing three separate bases for it in an opinion built out of right-wing talking points. But it’s easy to see the Supreme Court going the other way. Immigration is a political question, yet here it is at the Supreme Court, which is supposed to decide the law.
So the Supreme Court may well say “We don’t decide cases like these” both for reasons of Roberts Court judicial conservatism, and because if the court does get to the merits of this case, we may end up with yet another 4-4 deadlock, and nothing resolved whatsoever.
That’s because the central substantive question—whether Obama exceeded his authority—often sounds like a game of he said, she said.
On Obama’s side, the government has argued that DACA and DAPA are within the executive branch’s discretion. The government has to prioritize somehow, and this is no different from how previous administrations have prioritized for decades. Until a better system comes into place, there has to be some kind of triage, and DACA and DAPA are as good as any.
On Texas’s side, the states argue that these aren’t discretionary policies that implement the law, but, effectively, new laws entirely. DACA and DAPA create whole new legal classes of people, and write into policy what Congress specifically refused to write into law. The policies thus violate both the Administrative Procedure Act (for a variety of technical reasons) and the Constitution, which requires that the president “take Care that the Laws be faithfully executed.” To conservatives, exempting 4 million of the 11 million people affected by the INA is not faithfully executing that law.
It’s not hard to see both sides of the argument. It’s also not hard to notice that conservatives make the exceeding-executive authority argument, which just so happens to nullify the immigration rules, while liberals make the within-discretion argument, which just so happens to uphold them. One gets the sense that the philosophical debate regarding the bounds of executive authority is not actually calling the shots here.
Of course, there are legal precedents on executive authority; it’s not simply a judgment call. If the court reaches those questions, there will be ample law to guide it. But if the two sides are actually arguing politics while pretending to argue law, that’s a good sign that this is a political question after all, and not an actual case or controversy between parties with standing to sue. Maybe this debate belongs more on the courthouse steps than in the courtroom itself.