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ICYMI: New York Times’ Linda Greenhouse Blasts 5th Circuit Ruling on Immigration

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New Column Urges Supreme Court to Take Up the Case, Place Principle Over Politics

This morning, prominent Supreme Court observer and New York Times columnist Linda Greenhouse blasted the 5th Circuit’s decision on the DAPA/DACA lawsuit, calling the ruling “as cynical an exercise of judicial authority as I can remember.” Greenhouse’s important voice joins the growing chorus of others calling on the Supreme Court to remedy the 5th Circuit’s mistake.  The full piece follows below and is available online here.

Terry Eastland, a Reagan-era conservative activist who now edits The Weekly Standard, wrote a book back in 1992 that he called “Energy in the Executive: The Case for the Strong Presidency.” He took to task both President Ronald Reagan, for whom he had worked in the Justice Department, and the first President Bush for having failed to use all possible levers of presidential power to advance the conservative agenda.

“The mere possibility of negative reaction from Congress or elsewhere should not deter the energetic executive from administrative governance,” Mr. Eastland wrote. “The president is elected to govern, and mere maintenance of the status quo is not to be confused with energetic government.” The book’s purpose, he explained, was “to recover and restate the enduring case for energy in the executive, which is to say: the strong presidency.”

What a difference it makes when Barack Obama is in the White House.

I reached for Mr. Eastland’s book on Monday night, even before I finished reading the decision from the United States Court of Appeals for the Fifth Circuit that refused to lift a nationwide injunction against the Obama administration’s effort to shield millions of undocumented-immigrant parents of American-citizen children from deportation.

The 2-to-1 decision in State of Texas v. United States held that the Deferred Action for Parents of Americans program would likely be found after a trial to have exceeded the president’s authority under the Immigration and Nationality Act. The program could not be allowed to take effect in the meantime, the majority said, because it would subject Texas and the 25 other states that sued to block it to “a substantial threat of irreparable injury.”

I wonder whether Mr. Eastland, who these days criticizes President Obama’s “unilateral governance” and “Congress-circumventing actions,” is planning a new book praising “energy in the judiciary.” Someone on his side of the street certainly should write one. The majority opinion is as cynical an exercise of judicial authority as I can remember — and no, I haven’t forgotten Bush v. Gore. The dissenting judge, Carolyn Dineen King, nailed it when she said the case “essentially boils down to a policy dispute” and that “the policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.” Chief Justice John G. Roberts Jr. could hardly have said it better himself. In fact, he did say essentially the same thing, in his dissenting opinion last June in the same-sex marriage case.

I don’t casually accuse courts of cynicism, and I’m not so naïve as to be shocked at the thought that a judge’s political outlook might influence a judicial outcome. So let’s look at the details, beginning with the untoward delay in issuing the opinion, four months after the case was argued in the Fifth Circuit’s New Orleans courthouse. This was supposed to be an “expedited appeal” to be decided within 60 days, and as the weeks and months went by, suspicions grew in the immigration advocacy community that the judges were deliberately running out the clock on the Obama administration’s ability to get an appeal up to the Supreme Court in time for a decision during the current term. In mid-October, some immigration activists staged demonstrations in front of the courthouse, including a nine-day hunger strike, to shame the judges into releasing the opinion. In her dissenting opinion, Judge King said there had been “no justification” for what she called the “extended delay.”

(The kindest thing to say about the judges in the majority, Jerry E. Smith and Jennifer Walker Elrod, is that they may have used their time not to evade timely Supreme Court review but to write snarky comebacks to Judge King’s unanswerable dissenting opinion. I’ve rarely read anything in an opinion as condescending as this footnote, addressed to Judge King, the circuit’s former chief judgeand one of the country’s most highly respected jurists: “Our dedicated colleague has penned a careful dissent, with which we largely but respectfully disagree. It is well-researched, however, and bears a careful read.” Another footnote contains this criticism: “The dissent, throughout, cleverly refers to the states, more than forty times, as the ‘plaintiffs,’ obscuring the fact that they are sovereign states [while referring to the defendants as the ‘government.’ ]” Sorry, Judges Smith and Elrod, the 26 states are the plaintiffs, and it is standard judicial practice to refer to the federal government as the government. I suppose you might have preferred the case to be named “Twenty-six Sovereign States v. A Man Called Barack Obama.”)

Although the Supreme Court’s window for the current term is closing quickly, Solicitor General Donald B. Verrilli Jr. will get a petition up to the court in time. Assuming the justices agree to hear the case, it will be fascinating to see how they respond to a decision that reads like a judicial version of the old Woody Allen movie “Sleeper,” in which everything that used to be bad for you is now good, and vice versa.

Standing, for example. As I observed in a recent column, conservative federal judges who used to be very strict about deciding who had the requisite “injury in fact” to bring a lawsuit are now flinging the courthouse doors open wide to anyone with a complaint that might prove useful in propelling a particular agenda. Was I ever right. Not a week after that column appeared, Federal District Judge Rosemary M. Collyer ruled that the House of Representatives has standing to sue the administration for using unappropriated funds for a portion of the Affordable Care Act’s insurance subsidies.

Not too long ago — or at least back when I took a law-school course on federal jurisdiction — any federal judge would have promptly tossed out such a claim as a non-justiciable political dispute between two branches of government. But “the House has suffered a concrete, particularized injury that gives it standing to sue,” Judge Collyer said. Last month, the judge refused the administration’s urgent request to authorize an appeal of the standing question, announcing instead that she would hear the case, United States House of Representatives v. Burwell, on its merits next year.

And then this week came the Fifth Circuit’s immigration decision. The claim of Texas and its allies to standing is preposterous. The Fifth Circuit majority found that the state’s concrete injury lies in the fact that some 500,000 undocumented Texas residents would be entitled under the deferral program to obtain drivers’ licenses, and the state, which charges $25 for a six-year license, would lose “a minimum of $130.89” on each license. “Even a modest estimate would put the loss at several million dollars.” Hmmm. My own user-friendly state of Connecticut charges $66 for an ordinary driver’s license and offers undocumented immigrants a drive-only license (legal authorization to drive, but not to be used for identification) for a $72 fee. I guess the great state of Texas would rather fight the federal government than figure out how to balance its motor vehicle department’s books.

The government had argued in its brief that whatever Texas loses on issuing licenses it would more than gain on car registration fees, other driver-related expenditures, and the obvious fact that immigrants with deferred deportation would be able to work openly and pay taxes. (Attorney General Kamala Harris of California made this point in a conference call discussion on Tuesday, noting that California, with more immigrants than any other state, expected to reap sizable financial benefits from the deferred deportation program.)

The Fifth Circuit rejected the government’s argument, saying that “none of the benefits the government identifies is sufficiently connected to the costs to qualify as an offset.” In 2002, a lifetime ago in judicial politics, the same Fifth Circuit (different judges) denied standing to taxpayers who challenged a Louisiana law that authorized special license plates with the slogan “Choose Life,” while not authorizing an equivalent slogan for abortion rights. The Fifth Circuit said then that the plaintiffs could claim no injury because any extra cost of the special plates would be offset by the extra fee the state charged for them. Times change.

In its analysis of the states’ standing, the Fifth Circuit majority relied heavily on a 2007 Supreme Court decision, Massachusetts v. EPA, that accorded the state standing to challenge the Environmental Protection Agency’s refusal to regulate motor vehicle emissions linked to climate change. Massachusetts had argued that as a predictable result of climate change, its coastline would be eroded by rising seawater. But in her dissenting opinion on Monday, Judge King pointed out that the Clean Air Act, under which Massachusetts had brought suit, specifically authorized lawsuits for a refusal to regulate, while there is no such authorization in the immigration law. Chief Justice Roberts wrote a vigorous dissent in the Massachusetts case in which he described standing as “a fundamental limitation ensuring that courts function as courts, and not intrude on the politically accountable branches.” Justice Antonin Scalia has also taken a classically strict view of standing. These two justices will soon have a chance to show whether they still mean it.

The administration’s deferred action program was announced a year ago in a memorandum by Jeh Johnson, the secretary of Homeland Security. The five-page memo, which Judge King attached to her dissenting opinion, described deferred action as “a form of prosecutorial discretion.” This use of administrative discretion in immigration enforcement dates to the 1960s, Mr. Johnson noted. The difference here was that a specific class of people — otherwise law-abiding parents of American-born or legal-resident children — would be eligible for a three-year deferral of deportation if they applied for it, passed a background check, and paid a fee of $465. In other words, nothing is automatic. There is no waving of a magic wand for the entire class; each applicant has to pass individually through the gateway that the program establishes.

The memo concluded: “This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the executive branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority.”

The exercise of prosecutorial discretion, Judge King observed, is not subject to judicial review. She also noted that Congress in 2002 delegated to the Department of Homeland Security authority to “establish national immigration enforcement policies and priorities.” Only by a twisted characterization of the program as a “decision to change the immigration classification of millions of illegal immigrants on a class-wide basis” did the Fifth Circuit majority find the deferred action program to be outside the frame of that delegated authority. If not for its length at 70 pages, the opinion would fit comfortably as a talking point in a Republican presidential debate. I was not surprised to see Donald Trump nearly jumping up and down with glee when asked during Tuesday night’s Republican debate what he thought of the Fifth Circuit decision.

Properly understood, with all its qualifiers, I’m not sure the deferred action program even counts as the kind of “energy in the executive” that Terry Eastland called for so many years ago. In reviewing the decision, the Roberts court has a chance to demonstrate that it cares about principle more than politics. That’s the kind of energy the judiciary needs now.