Leading Media Outlets Highlight Key Standing and Chaos Themes Ahead of US v. Texas Immigration Case at Supreme Court
With the U.S. Supreme Court set to hear oral arguments in the U.S. v Texas immigration executive action case on Monday, leading media outlets are previewing the case and its implications. Many of these new preview pieces are highlighting two key themes that we have been paying special attention to: the assessment that the Republican challengers lack standing, according to Chief Justice John Roberts’ 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.
David Leopold, an immigration attorney and past president of the American Immigration Lawyers Association (AILA) who serves as legal counsel for America’s Voice, has issued a series of detailed analyses exploring these themes. Here are links to Leopold’s pieces on the subject: analysis highlighting how U.S. v Texas is best understood as an epic political battle; how the GOP challengers clearly lack standing due to the partisan nature of the lawsuit and Chief Justice Roberts’ desire to avoid the politicization of the Court; how and why confusion and chaos would result from a 4-4 split; the six core arguments cited by the Obama administration in their original brief before the Court; how the Republican plaintiffs’ brief before the Court relies on confusion and obfuscation, not on reasoned legal analysis; and how the Obama Administration’s reply brief calls the GOP challengers’ brief “simply wrong” on immigration law and raises the stakes for the case in the process.
Below, we present several of the new U.S. v Texas preview pieces from leading media outlets, highlighting key excerpts dealing with the core themes of standing and judicial chaos:
Greg Stohr in Bloomberg, “Immigration Case Injects Supreme Court Into Election-Year Storm”:
“The prospect of an extended vacancy on the court after Scalia’s death has only increased the political significance. The court could reach a 4-4 deadlock that would uphold the lower court ruling without explanation. That outcome would mark a new level of judicial dysfunction, effectively killing a major presidential initiative without the Supreme Court ever issuing a definitive ruling.
With the stakes so high, advocates on both sides are suggesting narrow approaches that might produce a majority opinion.
The most prominent is the administration’s argument that the states lack the legal standing to challenge the program at all. The Supreme Court has required litigants to show that a challenged government program has injured them in some concrete way.
… That argument may hold appeal for Chief Justice John Roberts, a potential swing vote in the case and perhaps the court’s staunchest proponent of strict requirements for legal standing.”
… Although a 4-4 split would block the plan, probably until Obama leaves office in January, it wouldn’t definitively resolve the underlying issues. Proponents of the plan could try to re-open the issue by filing suit in a different part of the country, said Brianne Gorod, chief counsel of the Constitutional Accountability Center, which is backing the administration in the case.
“A 4-4 decision would leave a very complicated and confusing scenario in place,” Gorod said. That “is just one more reason why it is very unlikely that his court is going to end up splitting 4-4.”
Richard Wolf in USA Today, “Supreme Court Ruling on Immigration May Spur More Challenges”:
“A tie vote would hand a victory to Texas and 25 other states that have successfully blocked the program in lower courts, but it could unleash new challenges. States and cities who favor the program could try to fight the nationwide injunction imposed by a lone judge on the Mexican border and upheld by the nation’s most conservative federal appeals court.
‘Basically, you’d have a judicial mess,’ says David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association. ‘You’d have absolute chaos in the courts.’” …
… “Perhaps most important, immigration proponents note that Roberts has sought to steer the court away from political controversies and may be even more inclined to do so during the battle between Obama and Senate Republicans over filling Scalia’s seat.
“He cares very much about the politicization of the courts,” says Brianne Gorod, chief counsel for the liberal Constitutional Accountability Center.”
Sam Baker in National Journal, “Will John Roberts Side With Obama On Immigration?”:
“The high court will hear oral arguments next week in a challenge to President Obama’s executive actions on immigration, and some liberal legal experts believe that the administration has a good shot at winning Roberts’s vote.
… With only eight justices on the Court, the White House would only need to pull away the vote of one Republican appointee—most likely, Roberts or Justice Anthony Kennedy—to win the case.
“I think they’re both really in play for the administration,” said Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center. “I think the chief in particular because his views on standing, and his views that standing should be incredibly limited, have been so strongly stated and so consistently stated.”
Big cases often come with a debate over one party’s standing, but that dispute is especially pointed in the immigration case. The Justice Department has devoted at least half the space in its written briefs to an aggressive argument that the states cannot challenge federal immigration policy in court.
“Allowing claims like those respondents press here to proceed 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 Justice Department wrote.
Some legal experts say that argument might be more likely to appeal to Roberts than to Kennedy. Broadly, Kennedy has a reputation for embracing the opportunity to decide big legal questions, while Roberts frequently tries to avoid them. And Roberts is often wary of opening the courtroom doors further than he thinks is necessary.
To establish standing, the states must establish that they would suffer an “injury” from Obama’s immigration policies. That injury, they say, comes in the form of a financial burden that they would face if millions of undocumented immigrants are allowed to legally remain in their states. Texas pays particular attention to the costs it would bear from issuing driver’s licenses to those workers, because the state subsidizes the cost of a license for many immigrants.
But if states can challenge every change in federal policy that has a ripple effect on their budgets, the courts will end up adjudicating state-federal disputes over everything from immigration policy to the federal formula for calculating poverty. And that would thrust the courts into a political role that Roberts might prefer to avoid.”
Mark Sherman in the Associated Press, “Obama’s Power Over Immigration Drives Supreme Court Dispute”:
“The Supreme Court case might not even address the issue of executive authority if the justices determine that Texas and the other states don’t have the right to challenge it in federal court. Such a resolution, which could attract support from both liberal and conservative justices, could enable the court to sidestep the potentially divisive details over immigration and avoid a 4-4 tie following Justice Antonin Scalia’s death in February.”