If Justice Antonin Scalia were still on the Supreme Court, the headlines Monday would likely declare that fives justices appear poised to invalidate President Barack Obama’s executive actions on immigration.
But in his absence, the justices appeared to arrive at an apparent deadlock during Monday’s arguments in United States v. Texas, a challenge to those executive actions. Texas, along with 25 Republican-controlled states, argues that Obama does not have the power to defer deportation for the undocumented parents of citizens or lawful permanent residents. It also insists that Obama lacks authority to expand a previous program that defers deportation for undocumented immigrants who arrived in America as children. (Together, Obama’s programs are called DAPA and DACA+.)
An extremely conservative district court—which Texas carefully selected to increase its odds of success—sided with the state in 2015, issuing a nationwide injunction to prevent the immigration actions from taking effect. An equally conservative 5th Circuit Court of Appeals upheld that decision. If the Supreme Court reaches a 4–4 stalemate, it will affirm that lower court decision without setting precedent for other circuits. That means the 9th Circuit Court of Appeals might reach an opposite outcome, upholding Obama’s actions, which would mean that …
Well, actually, nobody is quite certain what would happen then. Would the Texas court’s nationwide injunction remain? Would it apply only to states within the 5th Circuit, allowing DAPA to take effect elsewhere? Will the election of President Donald Trump and the prompt deportation of 11 million undocumented immigrants render this case moot?
The inevitable chaos of a potential 4–4 split led many court-watchers (myself included) to speculate that Chief Justice John Roberts would settle the case narrowly, on standing grounds. Under Supreme Court precedent, parties may only challenge a government action if it harms them. Texas claims that DAPA and DACA+ injure the state because the DMV will have to provide driver’s licenses to some immigrants who secure deferred deportation. But Texas provides licenses to noncitizens by choice, meaning it could theoretically stop the practice and halt the alleged harm. More importantly, states aren’t usually allowed to sue just because some federal action requires them to spend a marginal amount of new money. If they could, states could crowbar their way into the courthouse to challenge everything the federal government does.
But within minutes of Monday’s arguments, it became painfully clear that Roberts was unpersuaded by the government’s standing argument. He noted that, if Texas did deny licenses to deferred action beneficiaries, they may well sue the state, possibly for an Equal Protection violation. To Roberts, that puts Texas in “a real Catch-22”: The state can remedy the legal harm by refusing to give licenses to some immigrants—but in doing so, it would open itself up to a lawsuit. (I’m not sure that’s actually a real Catch-22, but whatever.)
With standing apparently out the window, the court entered the muck of Texas’ substantive arguments, which revolve around a flimsy statutory claim and an extremely goofy constitutional claim. That constitutional claim asserted that DAPA violates the Take Care Clause of the Constitution, which requires the president to faithfully execute federal law. But the Supreme Court has never enforced that clause, for good reason: There are thousands of federal laws, not all of which can be enforced with equal vigor simultaneously, meaning the president must prioritize. As I explained in January, if courts could use the Take Care Clause to force the president’s hand on a certain statute, the federal judiciary would become a scullion of the minority party: Whenever a Democrat holds the presidency, Republicans could sue to make him enforce their favorite statutes and vice versa.
The Take Care Clause made no appearance on Monday’s arguments, suggesting it is a nonstarter, at least with Scalia gone. Instead, the court’s conservatives gestured toward a broad separation of powers principle, which seems misguided. All DAPA really does is deprioritize the deportation of a certain class of immigrants. Federal law clearly allows for that, since it instructs the executive branch to “establish … national immigration enforcement policies and priorities.” But Justice Anthony Kennedy fretted that by establishing a policy that affects a class of more than 4 million people, Obama overstepped his executive authority. In the most important exchange of the day, Kennedy declared that Obama was “defining the limits of discretion”:
And it seems to me that that is a legislative, not an executive act. The briefs go on for pages to the effect that the President has admitted a certain number of people and then Congress approves it. 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!
When your argument flusters Justice Kennedy, you’ve probably lost him. And without Kennedy—or, it seems, Roberts—the court looks stuck at a stalemate. Ever wondered what happens when Republican governors cook up a political challenge to an executive action affecting millions of people, one justice dies, and a Republican Senate refuses to even consider confirming his potentially tie-breaking replacement? Hope so! Because it looks like we’re about to find out.