David Leopold analyzed the brief submitted by the United Sates in the immigration case. Cross-posted from David’s blog.
This week, the Obama Administration filed its opening brief before the U.S. Supreme Court in U.S. v. Texas, the lawsuit challenging DAPA and DACA expansion, the President’s November 20, 2014 executive actions on deportations. Here are six key arguments the Administration has made to the Court:
1. The lawsuit is a political, not a legal dispute and has no place in court. The Administration stresses that the case is, at bottom, a policy dispute masquerading as a lawsuit. “The court of appeals struck down a federal immigration enforcement policy at the behest of a group of States that are not the objects of that policy. Its ruling violates bedrock limits of Article III and forces the federal courts to resolve complex debates over immigration policy that the Constitution reserves to the political Branches of the National Government.” And later, “Within the National Government, it is the responsibility of the political Branches—not the federal courts—to establish and revise immigration policies for our Nation as a whole and, in so doing, to consider the views of different States. 6 U.S.C. 202(5). “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.”
2. Texas and the 25 other states have no standing to sue the federal government over its immigration policy—they have no business taking their challenge to DAPA and DACA expansion to court. Citing DaimlerChrysler v. Cuno, an opinion authored by Chief Justice Roberts himself, the Administration emphasizes that “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” The Administration continues, citing Arizona Christian Sch. Tuition Org. v. Winn, (another case in which Roberts was in the majority) arguing that to “establish standing, a plaintiff must show, at a minimum, that it has suffered an individualized injury to a ‘legally protected interest,’ that the injury is ‘fairly traceable’ to the defendant’s challenged conduct, and that the injury is redressable by a favorable decision.” The claimed harms to Texas, so the Administration argues, “are nothing more than allegations of indirect or incidental effects from the Guidance, not invasions of any legally-protected interest under the Constitution.”
3. Chaos will ensue in the courts if Texas is permitted to sue the federal government over an immigration enforcement policy. Allowing this case to go forward, the Administration claims, “would upend the constitutional design by enmeshing the courts in all manner of disputes between the federal government and a State, or competing factions of States, over immigration policy.” The government argues it will open the floodgates, drowning the federal courts in claims brought by states that disagree with a federal policy. “If States could establish standing on the basis of the indirect effects of federal policy choices regarding immigration enforcement, federal courts would be drawn into all manner of generalized grievances at the behest of individual States that disagree with federal policy judgments. Such a rule would enable any State to make an end-run around the structural limitations on its authority and cause the very sort of harms those limitations are intended to prevent.” Later, the Administration continues, “Allowing individual States to challenge such decisions based on their incidental effects would upend the federalism and separation-of-powers principles that form the foundation of our constitutional structure.”
4. The case is not about Mr. Obama’s authority to grant temporary deportation reprieves—everybody agrees the President has that authority—it’s about the Republicans’ objection to allowing undocumented parents a chance to work legally to support their families. “[R]espondents do not dispute that the Secretary has discretion to establish policies for forbearing from removing every single person who is potentially eligible under the Guidance—and indeed for forbearing from removing the larger number of aliens who he has determined are not enforcement priorities. The Secretary thus has ample authority to notify these lowest-priority aliens that he has made a non-binding decision not to remove them for a period of time. The real focus of respondents’ legal objection is not deferred action itself, but the availability of work authorization as a result.” The government then provides the Court a detailed explanation of the availability of employment authorization to undocumented immigrants granted deferred action demonstrating that it’s nothing new, and well-grounded in the law.
5. Congress has effectively authorized DAPA and DACA expansion. The Administration cleverly uses the Congressional Republicans’ failure to defund DACA and DAPA against the GOP plaintiffs arguing that the failure and subsequent funding of DAPA and DACA is tantamount to Congressional acquiescence. “Congress has considered a series of bills that would bar implementation of DACA (and later DAPA) or block funding unless they are rescinded, and that would limit the Secretary’s authority to grant work authorization. E.g., H.R. 5759, 113th Cong., 2d. Sess. (2014). None has passed both the House and Senate, much less become law. After much debate, Congress instead has enacted two appropriations bills that fund DHS—leaving DACA and DHS’s deferred action and work-authorization authority untouched. 2016 Appropriations Act 256; 2015 Appropriations Act, 129 Stat. 42.”
6. The Republicans’ claim that the deferred action guidance violates the Take Care Clause is not worth the paper it’s written on. The Administration all but dismisses the states’ claim that DAPA and DACA expansion violate the president’s obligations under the Take Care Clause, devoting a mere three (3) pages to it at the end of the brief. The government argues that the states “merely use the Take Care Clause to dress up their misguided statutory arguments in constitutional garb… And in any event, the Secretary is faithfully executing the weighty and complex task of administering and enforcing the INA.”
