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Growing Consensus: Judicial Chaos and Politicization of Court at Stake Ahead of U.S. v Texas Hearing at Supreme Court

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With the U.S. Supreme Court set to hear oral arguments in the U.S. v Texas immigration executive action case on Mondayadditional leading media voices are previewing the case and highlighting two key themes that we have been paying special attention to: the assessment that the Republican challengers lack standing, following Chief Justice John Roberts’ own view of the judiciary as a forum to resolve legal, not political, disputes; and the judicial chaos that could stem from a 4-4 split at the Court.

Below, we present new U.S. v Texas preview pieces highlighting the core themes of standing and judicial chaos:

New York Times editorial, “Immigration Politics at the Court”:

On Monday, the Supreme Court will hear oral arguments in United States v. Texas, one of the most flagrant examples in recent memory of a naked political dispute masquerading as a legal one.

In this case, 26 Republican-led states brought suit against President Obama’s November 2014 executive actions to protect millions of immigrants from deportation. And once again, the prospect of a 4-to-4 split on the court threatens to spur widespread legal chaos by effectively giving these 26 states the power to set national immigration policy. But it need not come to that. If the justices follow their own precedent as well as longstanding practice, they should reject the plaintiffs’ absurd claim.

…Besides, the states have no standing to bring the suit in the first place because, despite their contorted claims, they will suffer no demonstrable harm. If the states are allowed to prevail in this case, states conceivably could sue over almost any federal policy decision they oppose.

Chief Justice John Roberts Jr. likes to say that the court is above politics. This case, which has never been more than a highly politicized anti-immigrant crusade wrapped in legal briefs, gives him and the court a clear opportunity to reaffirm that principle and leave fights like these to the political process.”

Dahlia Lithwick in Slate, “More than Immigration at the High Court”:

“Most of what you need to know about the challenge to Obama’s executive actions here is that—as complex as many elements of this case are—it is not really in grievous doubt that the president is allowed to do what he did. Even the opponents to his actions concede much of that, as Simon Lazarus noted recently in the New Republic. And as the Supreme Court itself determined in a 2012 case called Arizona v. United States, “a principal feature of the removal system [used to remove immigrants from the country] is the broad discretion exercised by immigration officials.” So this isn’t really a case about psychotic presidential overreach as much as it is a political challenge to anything Obama does as definitionally constituting psychotic presidential overreach. Because Obama.

Also, this case comes with a massive standing problem. As a general rule, courts can’t hear lawsuits unless the plaintiff has suffered some injury. Without such standing, courts have no role to play in deciding the issues. Texas is claiming that it has standing to fight the president’s immigration actions because it grants driver’s licenses to DAPA beneficiaries, and the state has to pay for this. But the Obama administration argues that Texas chooses to allow DAPA recipients to get driver’s licenses, and they could just opt not to. More urgently they contend that if states can bring politically motivated lawsuits against every single government policy they don’t like simply because states pay for something, the court will be flooded with an infinite number of lawsuits over an infinite number of policies.

Because Chief Justice John Roberts has been the court’s standing-whisperer—doggedly guarding the courthouse doors from frivolous plaintiffs bringing silly suits—supporters of Obama’s executive actions are counting on him to stand firm on the principle that hating the president really, really hard is maybe not sufficient reason to confer standing to the plaintiffs here. Of course, there is also the matter that real people will suffer grievous harms if the administration loses this case.

Bob Egelko in San Francisco Chronicle, “Roberts May Hold the Key as Supreme Court Takes Up Immigration”:

“In the current case, before addressing the legality of Obama’s actions, the court must decide the issue of standing — whether any of the states can show that the president’s decision to spare some of their residents from deportation would cause any state the type of specific, measurable harm that should be addressed in court, rather than through the political process.

…If Roberts or another conservative justice decides the states have no standing, a conclusion usually associated with a conservative view of the law, the likely result is a ruling upholding Obama’s orders and limiting future challenges by states to presidential actions on immigration.

‘If (Roberts) is consistent in his approach, he’ll say there’s no standing,’ said Kevin Johnson, the law school dean at UC Davis, who has written about the case. Describing the question of standing as a ‘close call,’ Johnson said he expects a majority vote in Obama’s favor — four liberal justices voting to uphold his authority to issue the orders, and one or two conservatives saying the states had no right to sue.

…By the logic used by Texas’ attorneys, any city or state whose population increased because of a new federal policy would have standing to sue the government because of the prospect of additional costs, said David Leopold, a Cleveland attorney and former president of the American Immigration Lawyers Association.

‘We’re talking about judicial chaos — courts will be absolutely flooded with claims,’ he said.

The same rationale would let a state sue over the increased costs of its benefits for veterans whenever the federal government made more people eligible to serve in the armed forces, said Stephen Legomsky, a law professor at Washington University in St. Louis and former chief counsel of U.S. Citizenship and Immigration Services.

‘That’s the price of living in the federal system,’ he said. ‘Any federal action is going to help some states and hurt others.’”

Erwin Chemerinsky, Dean of UC Irvine School of Law, in USA Today, “Texas Immigration Case Should Be an Easy Call”:

“At the very least, Supreme Court justices should be consistent. If they hold to that standard, even in the most minimal way, they will dismiss the challenge by Texas and other states to President Obama’s executive action on immigration. Chief Justice John Roberts explained it all in a 2007 opinion that should lead both conservatives and liberals to conclude that the federal courts lack jurisdiction to hear the suit.

…It cannot be that Roberts and conservatives allow standing when they like the claim and dismiss cases when they don’t.  If the conservative justices follow their reasoning from Massachusetts v. EPA, they must vote to dismiss the challenge to DAPA. And that is exactly the right result.”

Jeremy Redmon in the Atlanta Journal-Constitution, “Feds, States Readying for U.S. Supreme Court Showdown over Immigration”:

“With the death of Justice Antonin Scalia in February, it’s possible the court could split 4-4, which would leave the injunction in place. That could prompt federal lawsuits from other parties who want the executive actions to go forward, said David Leopold, past president of the American Immigration Lawyers Association. Last year, twelve other states and the District of Columbia filed court papers in support of Obama’s actions, saying they could help boost their tax revenues and economies. It’s possible one or more of them could sue, Leopold said.

‘At a minimum, you’d see a lot of action in the courts all over the country,’ he predicted about a 4-4 split. ‘And it would create a chaotic situation.’”