WASHINGTON, D.C. — One of the biggest uncertainties in United States v. Texas, a challenge to Obama administration programs that could enable over 4 million undocumented immigrants to temporarily remain in the country, is whether the justices will actually reach a clean decision. With one seat vacant, and Texas’ allies in the Senate determined not to confirm anyone President Obama names to fill that seat, there is a very real possibility that the Court will split 4–4 in this case — thus leaving question of whether the administration acted legally unresolved.
Due to the way the Court treats evenly divided decisions, it would be terrible news for the administration — and for the millions of families who hope to benefit from the challenged programs — if the Court did divide evenly. At least in the short term, a 4–4 split would not be a clean victory for Texas and the coalition of states it assembled to challenge the administration. But such a dirty outcome would still look very much like a victory for Texas.
The lawsuit challenges a program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”), as well as an expansion of the existing Deferred Action for Childhood Arrivals program (“DACA”). Together, these programs are expected to allow 4.9 million immigrants to temporarily remain in the country and to work while they are here.
Coming into Monday’s oral argument, many immigration advocates hoped that Justice Anthony Kennedy, who authored a 2012 opinion emphasizing the breadth of the executive branch’s immigration authority, would join the four more liberal members of his Court to uphold DAPA. Though he was mostly silent during Solicitor General Donald Verrilli’s time at the podium, the few questions he did ask suggest that he was not buying the Justice Department’s arguments. At one point, Kennedy said that the Court’s task is to define the limits of the executive branch’s discretion in the immigration context, and the decisions the Obama administration made here appear “legislative” and not “executive.” That’s terrible news for DAPA if the rest of the Court agrees.
Chief Justice John Roberts, who joined the 2012 opinion, was also viewed as a possible swing vote in this case. Yet, if Kennedy spent some of Solicitor General Donald Verrilli’s time at the podium dashing the hopes of immigration advocates, Roberts spent far more time lighting those hopes on fire.
Verrilli spent much of his time trying to explain why two awkward words appeared in the memorandum announcing DAPA. That memo provides that “for a specified period of time,” DAPA beneficiaries are “permitted to be lawfully present in the United States” (emphasis added). Thus, Texas claims in an argument that often appears more metaphysical than legal, the memorandum takes individuals who have broken immigration laws and somehow transforms them into people who may “lawfully” remain in the United States. This spiritual cleansing of the taint of lawbreaking, according to Texas, is not allowed.
The Chief hounded Verrilli for phrases in the Solicitor General’s reply brief, which explain that the phrase “lawful presence” does not have the same meaning as other, broader phrases, such as “lawful status.” It’s a distinction that makes sense to lawyers steeped in the arcane details of that law, but that is easy to mock if you only read parts of the brief without understanding their context. If any part of the oral argument is played on Fox News tonight, expect it to be this exchange between Verrilli and the Chief Justice.
Enter Elena Kagan
Yet, for all the drama about whether the executive branch may cleanse undocumented immigrants of whatever metaphorical sin they committed by remaining in the country without authorization, Texas’ metaphysical objections soon run headlong into the very real force that is Justice Elena Kagan. Towards the end of Verrilli’s time at the podium, Kagan asks whether the administration could have implemented the exact same policy as the one described in the DAPA memorandum without using the offending phrase “lawfully present.” Verrilli, sensing that he’s been thrown a lifeline, immediately responds “yes.”
This question, of whether the administration even needs to use the term “lawfully present” in order to accomplish what they seek to accomplish with DAPA, dominates Texas Solicitor General Scott Keller’s argument time. Early in his argument time, Keller reiterates his metaphysical claim, complaining that “transforming unlawful presence into lawful presence” is one of the primary sins committed by DAPA that must be washed away with fire by the Supreme Court. Justice Ruth Bader Ginsburg responds by noting that Texas concedes in its brief that the administration can deem certain immigrants to be low priorities for deportation, and even issue those immigrants cards informing them of their low-priority status so that they know that they are relatively safe from the watchful eye of immigration authorities.
When Keller agrees that, yes, the administration may decide not to deport certain immigrants and even give them physical evidence that they’d been granted a form of temporary mercy, Kagan pounces. If, as Verrilli says, the phrase “lawfully present” can be excised from the DAPA memorandum without changing how it operates, then why does it matter at all whether the administration uses that particular label to describe DAPA beneficiaries? Up until this point, many of Keller’s arguments suggested that Texas would be perfectly fine with much of DAPA if, instead of calling DAPA beneficiaries “lawfully present,” the administration had instead called them “tolerated immigrants,” or “special people,” or even “people with funny hats.”
Eventually, Kagan steers the argument away from this debate over whether that which we call a rose by any other name can be granted deferred action, and focuses on what she views as the real crux of Texas’s legal arguments. Forget about labels, Texas’s real beef is with the fact that DAPA beneficiaries also enjoy legal benefits in addition to the ability to remain in the country (or, at least, to remain as long as the federal government continues to tolerate their presence) — benefits such as the authorization to work and the ability to qualify for Social Security benefits.
There are a number of problems with Texas’s arguments against these additional legal benefits — as Verrilli lays out his his brief, for example, there is explicit statutory authorization for the benefits Texas complains most loudly about, and there are also regulations permitting these benefits to be afforded to recipients of deferred action, including DAPA beneficiaries.
As Kagan notes, these regulations raise an immediate problem for Texas, because it suggests that they brought the wrong lawsuit. If Texas’ real beef is with, say, work authorization, then they should have sued to challenge the regulations providing for work authorization, not the DAPA memorandum itself.
Will Kagan Matter?
The real question, however, is whether anything that Justice Kagan did will matter to the outcome of this case. Near the end of the argument, there were some signs that Kagan may have moved some votes. After Keller sat down, Roberts asked attorney Erin Murphy, who was arguing on behalf of the Republican-controlled U.S. House, why it wouldn’t be an acceptable solution to simply cross out the words “lawful presence” from the DAPA memorandum. Kennedy suggests that maybe Texas should have challenged individual regulations rather than going after the memorandum.
Whether either of them will cross over to give the Obama administration a win remains to be seen, but if Texas does manage to pull out an effective victory here, it’s important to note what had to happen for Texas to prevail.
Generally, when the Supreme Court splits 4–4, the lower court’s decision stands. In this case, Texas’s attorneys filed their complaint in Brownsville, Texas — a 5 hour drive away from the state attorney general’s office in Austin — where the only active federal judge had a long record of criticizing America’s immigration policies as insufficiently harsh. That judge then took the unusual step of issuing a nationwide injunction blocking the DAPA program.
Though the administration had two chances to challenge this order in a federal appeals court, both three-judge panels that heard these challenges included two especially conservative judges who also had a record of skepticism towards progressive positions in immigration suits.
Then this case came to the Supreme Court, where there are only eight justices, and where the vacant seat could remain open indefintely if Senate Majority Leader Mitch McConnell (R) retains the power to hold it open. Thus, if the Court splits 4–4, the lower court’s decisions could remain in effect for quite some time because there will be no ninth vote to resolve this case.
Texas, in other words, has benefited from luck, manipulation, and a rash of dirty tricks by its political allies. Together, that may be enough to force millions of people to remain in the shadows.