Cross-posted from Immigration Prof Blog.
Here is the transcript to the oral argument earlier today in United States v. Texas, which raises the question of the lawfulness of the Obama administration's expanded deferred action program for undocumented parents of U.S. citizens and lawful permanent residents (known as DAPA) announced in November 2015.
Lyle Denniston analyzed the argument on SCOTUSBlog and reads the tea leaves as indicating a possible win for the Obama administration.
The line-up of the advocates can be found here.
From reading the transcript, here are my thoughts on this much-anticipated argument:
Standing under Article III of the U.S. Constitution is a threshold question. As should have been the case, it was the subject of considerable questioning during the argument. In the end, the Justices appeared to be divided on how a majority would ultimately come down on the question.
Solicitor General for the United States Donald Verrilli was the first to argue. The argument seemed to go generally as expected, with no big surprises. Standing figured prominently in the argument from the outset. Apparently having standing on his mind, Chief Justice Roberts redirected Verilli to address the issue after Justice Ginsburg almost immediately after the argument began inquired about the merits.
Although Verilli did get to briefly discuss the merits of the deferred action "guidance," the bulk of the questioning was on standing. Verilli argued that Texas and the states lacked standing under Article III because (1) the alleged injury of increased costs of issuing driver's licenses to deferred action recipients was not redressable by the relief being sought; and (2) there was no concrete particularized injury to the states resulting from the administration's expanded deferred action program.
Chief Justice Roberts, who dissented in Massachusetts v. EPA, asked Verilli whether the injury in this case was "any more indirect and speculative" (Transcript p. 18, lines 3-5) from that one. In that case, a majority held that Massachusetts had standing to challenge a failure of the Environmental Protection Agency to regulate greenhouse gas emissions.
Justice Alito asked who would have standing to challenge a President's policy decision to have "open borders."
Justice Breyer pushed the limits of the states' theory of standing by asking if Rhode Island would have standing to challenge a federal statute requiring that the states give a driver's license to every member of the armed forces and the federal government transferred 250,000 soldiers to Rhode Island. Justice Sotomayor also noted the potential expansiveness of a finding that Texas had standing and challenges to federal laws and regulations.
President/General Counsel of the Mexican American Legal Defense and Education Fund Thomas Saenz, next argued for three parent intervenors who would benefit from the expanded deferred action program. Although clearly he was primed on the merits, the Justices asked him about standing and Saenz responded credibly. In arguing that the states lacked standing, Saenz emphasized that"this is a political dispute. [The states challenging the Administration] do not agree with the policy adopted by the Administration . . . . " Transcript p. 39, lines 13-14. Along these lines, Justice Breyer later in the argument acknowledged that the case had "tremendous political valence." Transcript p. 61, line 5.
Chief Justice Roberts tried unsuccessfully to get Saenz to concede that a Texas policy denying deferred action recipients from driver's license eligibility would be unlawful. In response to a question from Justice Sotomayor, Saenz later noted that not every state makes deferred action recipients eligible for licenses.
Texas Solicitor General Scott Keller (formerly Chief Counsel to Presidential candidate Ted Cruz), for the 26 states challenging the expanded deferred action programs. He was asked more about the merits than the standing question.
During Keller's argument, several Justices pressed an apparent compromise solution. It involved the language in the administration's guidance affording deferred action recipients "lawful presence" and seems to have muddied the waters. Removal of that language might be a possible way to defuse the dispute. Verilli initially raised this possibility. When forced to address whether removal of the "lawful presence" language would be sufficient to address the issues raised by the states, Keller quoted language from the guidance: "Deferred action means that for a specified period of time, an individual is permitted to be lawfully present in the United States." (emphasis added). Keller (and later Erin Murphy) stated that removal of the language would not be sufficient but it was unclear to me whether any of the justices agreed.
Another issue came up in discussion of the merits. Under another regulation in place for decades, deferred action recipients and receive work authorization. That regulation was not challenged in this litigation. Justice Kennedy intimated that, if that was the true problem in this case, it might would have been proper to challenge the regulation under the Administrative Procedure Act.
Erin Murphy, partner at the law firm Bancroft LLP, argued last on behalf of the U.S. House of Representatives as amicus supporting the states' challenge to the President's immigration guidance. From a paper transcript, she appeared confident and pushed the envelope but did not have quite the grasp of the immigration laws of her colleagues. Murphy, for example, at the outset stated that the administration adopted immigration reform that Congress considered and did not enact. Justice Sotomayor quickly corrected Murphy and pointed out that the Obama immigration program in no way created a "pathway to citizenship" like that found in many comprehensive immigration reform proposals.
Four final points:
1. Justice Kennedy viewed the case as one about the limits of discretion and suggested that the expanded deferred action programs constituted a legislative act by the President, which is "just upside down." It was not clear to me of his take on the standing question.
2. There was no questions from the justices on the "Take Care" argument based on Article II, section 3. The Court had ordered the parties to brief the issue. Nor did any of the advocates raise the issue.
3. Justice Thomas was silent at the oral argument.
4. The argument did not highlight that the expanded deferred action programs were (1) temporary in nature and did not afford undocumented immigrants any kind of permanent relief; and (2) could be changed by a new President and/or Congress.
As we learned from the Affordable Care Act case, it is hazardous to predict how the Supreme Court will rule on a case based on the oral arguments. After that argument, few commentators thought that Verilli and the Obama and administration would prevail; but they did. Here, although the outcome is hard to predict with certainty, it appears that (1) standing in this case is a central issue to the justices: (2) the "Take Care" argument is not; and (3) winning is not a sure thing for either side. Still, my instincts are that the Obama administration may come out okay in United States v. Texas in the end.
