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Supreme Opportunity: Roberts Has A Chance To Redefine Court Away From Politics, Protect Against Chaos

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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.”