Oral arguments Monday in United States v. Texas, the case challenging the Obama administration’s 2014 executive actions on deferred deportation of immigrants, were a good reminder that the Republican game plan for the rest of the Supreme Court term is resulting in both terrible politics and terrible law. Rather than hold hearings on the nomination of Merrick Garland to replace the late Justice Antonin Scalia, which could potentially sway the Court to a more centrist majority, Republicans are trying to run out the clock. By doing so, they hope to save what remains of a term that was supposed to be packed with conservative wins—chief among them killing off the Obama administration’s deferred deportation actions.
But like many recent Republican political strategies, the consequences of this intentional delay are potentially devastating for millions of people.
At issue in United States v. Texas is the Obama administration’s immigration program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and the expansion of an existing program, Deferred Action for Childhood Arrivals (DACA). In a nutshell, to qualify under the current versions of these programs, individuals must have continuously resided in the United States since January 1, 2010; register with the government; and pass a criminal background check. There are more steps and details to qualify, obviously, but the gist of the actions, according to the Obama administration, is to try to keep families together. The administration’s actions do not grant legal residency status to any qualified person; they simply put prosecuting individuals’ cases at a low-level priority, which could theoretically mean enough time for them to obtain lawful status.
Combined, the programs are estimated to benefit approximately four million undocumented immigrants now living in the United States.
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The deferred action programs are effectively exercises of prosecutorial discretion. All law enforcement officers, from your local cop to FBI agents, have a certain amount of legal discretion in determining whether and to what degree a particular law should be enforced. In the context of immigration law, that prosecutorial discretion comes in the form of immigration agents determining whether or not to initiate deportation proceedings. Just how much prosecutorial discretion and under what circumstances it can be employed is at issue in this case.
Law enforcement officers reside, constitutionally speaking, in the executive branch. So does the president of the United States. That means, generally speaking, prosecutorial discretion is a function of executive power.
Yet Texas, joined by 25 other Republican-controlled states, argues the president does not have the power to defer deportation of large numbers of people under DAPA and the expanded version of DACA.
In other words, Texas and the conservative-run states are challenging the administration’s use of executive power when it comes to immigration reform.
Those states filed a lawsuit in federal district court in Texas in February 2015 challenging the administration’s actions, arguing they were beyond the scope of its authority and that states risked the immediate harm of a couple thousand dollars in administrative damages without immediate court action. The district court agreed and issued a highly unusual nationwide injunction blocking the administration’s immigration actions from taking effect anywhere in the country, even in states not joined in the lawsuit or ideologically opposed to the measure. Not surprisingly, the ultra-conservative Fifth Circuit Court of Appeals upheld the injunction. The Department of Justice appealed that decision to the Roberts Court, which in January agreed to hear the case.
It’s not entirely clear that the district court had the initial authority to issue the ruling that it did, which is a legal issue to be sorted out at some point. But here’s the sticky part: Nobody, even the most dedicated court watchers, really knows when that will be! Maybe the Roberts Court will address it. Maybe they won’t. Maybe it’ll take a separate lawsuit in a separate jurisdiction to test the enforceable limits and logic of the order, should we get a non-decision in the form of a tie in United States v. Texas.
And such a tie may very well happen. Before Scalia’s death, the conventional logic among court watchers was that the Roberts Court could split 5 to 4 ruling against the administration unless immigration advocates could convince Justice Anthony Kennedy to build on an earlier decision he authored supporting, in very broad terms, the executive’s authority to deal with immigration matters. That case, Arizona v. United States, involved SB 1070, Arizona’s infamous “papers please” law that purported to empower local law enforcement to detain people on possible immigration violations, despite the fact that immigration enforcement is squarely within the power of the federal government and not the states. In striking many of the provisions as unconstitutional, Justice Kennedy stressed in that decision the importance of prosecutorial discretion.
Specifically, Kennedy wrote, “Discretion in the enforcement of immigration law embraces immediate human concerns,” such as “unauthorized workers trying to support their families.” He continued:
The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.
Deferred deportations are, at their very essence, exercises of executive authority. Given Kennedy’s language in Arizona v. United States, it’s reasonable for immigration advocates to have considered Kennedy a swing vote in support of the administration. I mean, he wrote about “human concerns” like undocumented workers trying to support their families as a justification for exercising discretion in not initiating deportation proceedings against every undocumented person possible.
But the Justice Kennedy concerned with the human toll of deportation seemed to be missing in action during oral arguments Monday, which makes it increasingly likely the Court will deadlock 4 to 4 on whether the deferred deportation actions are constitutional.
Rather than lean on his recent embrace of executive power on immigration matters, Justice Kennedy appeared concerned that the administration had created an entirely new policy that veered away from executive action and into legislative. “And it seems to me that that is a legislative, not an executive act,” Kennedy said to Solicitor General Donald Verrilli during arguments. Verrilli pushed back, but Kennedy didn’t seem to be buying it.
Kennedy went on to describe why he was considering the programs legislative acts rather than exercises of prosecutorial discretion. “The briefs go on for pages to the effect that the president has admitted a certain number of people and then Congress approves it,” Kennedy said. “That seems to me to have it backwards. It’s as if the president is setting the policy and the Congress is executing it. That’s just upside down!”
Should the Court split 4 to 4, the immediate impact would be to leave in place the Fifth Circuit ruling. But such a ruling would effectively answer nothing as to the constitutionality of DAPA and DACA expansion, leaving those policies up for a possible re-hearing the next term or even a challenge in another jurisdiction.
The point is we would get uncertainty in the law, and approximately four million people would continue with uncertainty as to the policies’ effect on their lives.
Which brings us back to the Republicans in Congress and their current strategy of running out the clock on the Garland nomination. The best chance conservatives have to hold onto what started out as a promising Supreme Court term for the kind of hot-button issues their base loves—abortion, birth control, immigration, and union busting—is to hope for as many ties this term as possible, find a way to win the presidency in 2016, and appoint their own replacement for Scalia. It is in every way an extension to the conservative approach to governing since Obama was first elected: Sit on the ball and run out the clock. The big question now is whether, and to what extent, the conservatives on the Roberts Court are willing to play along.