Last week, Sen. Orrin Hatch penned an op-ed suggesting that Democrats were trying to “deceive voters” with disingenuous claims “that the Supreme Court cannot function properly with fewer than nine justices on the bench.” After calling Democrats liars in various colorful ways, he concluded that “[t]he Senate’s determination to wait until after the election to consider a nominee will in no way impede the business of the judicial branch.”
Or maybe the judicial branch is about to get karate chopped in the face by the ugliest political fight of the year. Arguments on Monday in United States v. Texas, the partisan challenge to Obama’s executive actions that would have allowed more than 4 million undocumented immigrants to remain and work in the United States, certainly suggest a 4-4 tie is not just in the cards but also highly likely. Such a ruling would choke both the executive branch and the court, without affording much clarity or direction about the real scope of executive powers. Have fun with all that, Sen. Hatch.
The challenge in this case effectively asks whether President Obama’s 2014 tweaks to Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expansion of the Deferred Action for Childhood Arrivals program (DACA) exceed his authority. Obama issued these actions in response to congressional gridlock on immigration reform. The idea was that since Congress will not fund the deportation of the 11 million deportable immigrants, the administration would reserve deportation for dangerous offenders and allow others to temporarily remain, and to legally work.
But Texas and 25 other Republican-led states sued and had the executive actions blocked. The argument was that those actions exceed the president’s legal authority and that Texas suffered injury from them because the state issues drivers’ licenses to the beneficiaries of the program.
Obama supporters had hoped that this latter question—whether Texas’ voluntary granting of drivers’ licenses conferred the state with legal “standing” to come into a courtroom—would be a preferable escape than the prospect of a 4-4 tie. A tie would have the effect of upholding the nationwide injunction issued by a single district-court judge in Texas, until the case gets resolved on the merits. The case can then go back to the lower court and other cases can progress in other states. The clock would eventually run out on DACA. New courts and Congresses and presidents can fail to fix immigration for years to come. Again, how’s that working out for you, Sen. Hatch?
Most of Monday’s arguments suggest a court ready to break tidily 4-4 along party lines. Anthony Kennedy—who authored an important 2012 precedent that clarified that the president has ample executive power in the immigration context—says bluntly, “if the president is setting the policy and the Congress is executing it. That’s just upside down.” Early on, John Roberts—who was thought at least to be suggestible on the question on whether Texas has standing to bring suit—performs a pile driver on Solicitor General Donald Verrilli. Roberts implies that there’s a legal contradiction in the government’s reply brief when Verrilli refers to undocumented immigrants covered under the executive actions as “lawfully present in the United States” on one page and then says “[a]liens with deferred action are present in violation of the law” less than a page later. “Now that must have been a hard sentence to write,” Roberts jabs. (Or as Samuel Alito paraphrases: “How is it possible to lawfully work in the United States without lawfully being in the United States? I’m just talking about the English language.”)
Verrilli retorts “I actually had no trouble writing it, Mr. Chief Justice.” But we will spend most of the rest of the day fighting over this phrasing.
Roberts also quotes the president having said in 2013—about a year prior to his decision to expand DACA—that if he expanded DACA he “would be ignoring the law in a way that I think would be very difficult to defend legally.” The chief justice peers down at Verrilli, “What was he talking about?” Verrilli tries to explain that the president was just saying words. It doesn’t have the binding force of law.
The respondent doesn’t have any easier a time with the Supreme Court’s liberal wing than the petitioner has with its conservative side. As was the case in last month’s Texas abortion case, the court’s women ride rough over Texas Solicitor General Scott Keller. Justice Elena Kagan elicits from him the admission that maybe the same policy could stand with the words “lawfully present” removed from the guidelines. She also gets him to admit that maybe a policy in which the Obama Administration simply handed out cards to DAPA–eligible immigrants saying they were low-priority, without actually changing their status, could be permissible. So what’s the difference?
The fact that we are getting bogged down over the words “lawfully present” and whether Texas objects to DACA itself, or just the benefits it confers, is all highlighted when Justice Stephen Breyer launches into what can only be described as SCOTUS spoken-word poetry. It’s quite lovely really. Prufrockian. I feel the need to share it in full, verbatim:
I would like to ask a question:
The only thing I found here is about money,
If there’s something else that’s worrying you,
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—
Unless, luckily, they’re overruled.
And a few have been. They’re submerged like icebergs.
I share this poem with you partially because it has the effect of rendering Keller nearly mute. But mainly I share it as a way of showing that this case, which never should have come to the court in the first place, is seemingly making the justices crazy. (Maybe here is where I should add that one of my kids wonders why I still need to bother going to my reporter job at the court if it’s just going to be a tie all the time.)
Toward the very end of an extremely long 90-minute argument, Kennedy signals that maybe challenging these guidelines was not the best tactical way for Texas to proceed with the lawsuit, and other approaches may have been more prudent. This might reflect his wish to find some other way for this suit to come out than a bitter, partisan tie.
There are thousands of protesters on the front plaza and sidewalks before the Supreme Court on Monday, chanting, cheering, and imploring the justices to take a hard look at them as they come—to use Justice Sonia Sotomayor’s words today—“out of the shadows.” The crowds make it clear: Whatever happens next in the marble palace, U.S. v. Texas will cast a serious shadow over the court and the 2016 election.