The Supreme Court Hears Oral Argument in U.S. v. Texas

The U.S. Supreme Court heard oral arguments in U.S. v. Texas on Monday. This is one of the most anticipated cases on this year’s calendar, and it centers on President Obama’s program to allow certain undocumented persons come out of the shadows, be listed as a low priority for removal, obtain work authorization, and consequently gain a social security number and/or perhaps a driver’s license. Some say the President’s program could impact over 4.5 million persons. Texas and 25 other states sued to enjoin the program, as an overreach of the Executive branch. Certain harms were alleged, including the costs of issuing driver’s licenses. Texas et al. prevailed in the lower courts.  A 4-4 ruling, based on the current composition of the court, would mean the lower court rulings stand.

I think the Supreme Court should rule in favor of the United States in this case, but based on the questions, a 4-4 partisan split seems likely. Congress has empowered the Executive Branch to enforce the nation’s immigration laws.  If Congress wants to change the scope of that power, Congress can legislate accordingly. That’s my take, but Justice Kennedy wears the robe, and he seemed to take a different view on Monday. See his comment below in the transcripts excerpts (p. 24).

The U.S. Solicitor General really pushed the argument that Texas et al. do not have standing.  Justice Breyer seems to be in agreement, and he was ready with case cites. Justice Roberts and Justice Alito seemed very skeptical of the U.S.’s position, but they also had questions about who else might be impacted by an adverse decision.  (p. 27-28, p. 90, below.)  The Solicitor General said 4.5 million adjustment of status applicants have received work authorization since 2008.

As Justice Breyer put it, this is a case with “tremendous political valence.” Four disparate issues are presented, involving judicial standing, constitutional authority of the Executive, the Administrative Procedures Act, and the Take Care clause. Both sides presented slippery slope type arguments, saying an adverse verdict will open the floodgates of litigation. There’s a good chance that’s where this is headed, unless someone (I’m looking at you, Justice Kennedy) is moved by the greater implications of standing and getting unnecessarily involved in what is fundamentally a political dispute.

Here are some excerpts from the 100+ pages of transcripts which I found interesting:

P. 24

JUSTICE KENNEDY: What we’re doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act.

P. 27-28

GENERAL VERRILLI: The reason I had no problem writing it is because that phrase, “lawful presence,” has caused a terrible amount of confusion in this case; I realize it. But the reality is it means it means something different to people in the immigration world. What it means in the immigration world is not that you have a legal right to be in the United States, that your status has changed in any way. That you have any defense to removal. It doesn’t mean any of those things, and it never has. And – and so it doesn’t – and so at that fundamental level, we are not trying to change anybody’s legal status on the immigration- –

CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present.

GENERAL VERRILLI: Right. Tolerated

CHIEF JUSTICE ROBERTS: I’m sorry, that just so I get that right.


CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present.


JUSTICE ALITO: But they are –the DAPA beneficiaries are –may lawfully work in the United States; isn’t that correct?


JUSTICE ALITO: And how is it possible to lawfully work in the United States without lawfully being in the United States?

GENERAL VERRILLI: There are millions of people, millions of people other than the DAPA recipients about whom this is true right now. And this gets to the point of why their reading of Section 1324 is completely wrong.

JUSTICE ALITO: I’m just talking about the English language. I just don’t understand it. How can you be–


JUSTICE ALITO: How can you – how can it be lawful to work here but not lawful to be here?

P. 46

JUSTICE SOTOMAYOR: You know, you keep saying that, “deep economic significance.” Those nearly 11 million unauthorized aliens are here in the shadows. They are affecting the economy whether we want to or not. The answer is, if Congress really wanted not to have an economic impact, it would – it would allot the amount of money necessary to deport them, but it hasn’t.

P. 55

JUSTICE KAGAN: But then it seems to me, General Keller, that your –that what you should be attacking is not DAPA. What you should be attacking is the work authorization regulations that the DHS, or before that the INA, has had for years. Or you should be attacking other connections that DHS is making with respect to these people, but not DAPA itself.

MR. KELLER: But Justice Kagan, I think it is DAPA itself that we’re challenging. And the reason why is because that is what is transforming unlawful conduct into authorized lawful conduct.

JUSTICE GINSBURG: Where does it say that in DAPA? We have the DAPA directive. I didn’t see anything in it about work authorization or about Social Security.

P. 60

JUSTICE BREYER: I would like to ask a question. The only thing I found here is about money, really. If there’s something else that’s worrying you, it’s – -it’s sort of hidden. But money is money; I understand that. And my question is about standing.

And this is technical, but it’s important to me.

Looking at the briefs, awful lot of briefs, senators, both sides. Awful lot of briefs from States, both sides. Members of Congress. Why? Because this has tremendous political valence. Keep that in mind.

Now, keeping that in mind, let’s go back to two old cases which are scarcely mentioned. But old Supreme Court cases never die.


JUSTICE BREYER: –unless, luckily, they’re overruled. And a few have been. They’re submerged like icebergs.


JUSTICE BREYER: The one I’m thinking of is Frothingham v. Mellon, Massachusetts v. Mellon. And there, in those cases, the Federal government had given something to some people. There were beneficiaries. Other people wanted to sue because they said that means we’re going to have to pay more money. And the Court said, you other people from Massachusetts, I’m sorry Massachusetts lost, but lo and behold, it did. That’s just because I’m
from Massachusetts.


JUSTICE BREYER: But the point is they lost, because, says the Court, we can’t let you just sue on the basis that you, as a taxpayer, will have to spend more money. Because if we do, taxpayers all over the country will be suing in all kinds of cases, many of which will involve nothing more than political disagreements of all kinds.

P. 90

GENERAL VERRILLI: Exactly. And there are all kinds of statuses that don’t qualify as lawful status that people have always been allowed to get work authorization during the period in which – time where their presence is tolerated.

CHIEF JUSTICE ROBERTS: How – how many people are we talking about with those?

GENERAL VERRILLI: Millions. Millions. There are

CHIEF JUSTICE ROBERTS: The asylum applications?

GENERAL VERRILLI: No, but the adjustment of status, 4.5 million since 2008, and cancellation removal, 325,000 since 2008. Huge numbers.