Deconstructing the Questions of Roberts and Kennedy in U.S. v. Texas

Image via Flickr (Edward Weston)

In the aftermath of Monday’s Supreme Court oral arguments in U.S. v. Texas, much attention has predictably focused on the tough questioning directed at Donald Verrilli, the U.S. Solicitor General, by Chief Justice John Roberts and Justice Anthony Kennedy. To be honest, that was not unexpected. Justices ask tough questions — and, it’s important to note, their questions aren’t random. They are designed to probe and test the party’s arguments. What was interesting was how much of the argument was focused on the issue of “standing.” I attended the arguments on Monday and have reviewed the transcripts to take a deeper dive into what transpired during oral arguments and what it might mean as we await a decision.

Roberts and Kennedy questioned whether the harm claimed by Texas as the result of DAPA and DACA+ was particularized and concrete enough to meet the legal tests for standing — that is, whether Texas had the legitimate grounds to bring the lawsuit at all. There was one question posed by Roberts that hasn’t gotten enough scrutiny. That’s when Roberts asked the Solicitor General about the nature of the harm Texas claims it would suffer as a result of the DAPA and DACA+ guidance:

CHIEF JUSTICE ROBERTS: Is the injury here any more indirect and speculative than the injury in Massachusetts against EPA?

That’s a particularly significant question coming from Roberts. In Massachusetts v. EPA, the Supreme Court held that a state has standing to sue the EPA for not enforcing the Clean Air Act. In that case, Roberts dissented because he felt the states’ claim did not meet the particularized injury requirements for standing. There, Roberts concluded, the injury was indirect and redressability needed to come from the legislature, not the courts.

Roberts’ question to Verrilli about Massachusetts, therefore, was something of a legal softball, lobbed at the Solicitor General so he could explain to the Supreme Court why the alleged harm in this case — increased costs of driver’s licenses issuance to Texas because of a federal immigration enforcement policy — was more indirect and speculative than what was claimed in Massachusetts. The Solicitor General answered Roberts’ question directly, pointing out that the Massachusetts case concerned a claim under the Clean Air Act that required Congress to protect the states from the effects of pollution. And, as if to emphasize this point, later in the argument Justice Stephen Breyer noted that there is a big difference between what the Republicans are claiming in U.S. v Texas and what the states claimed in Massachusetts,

And as for the State, it cannot represent you parens patriae because this is between the Federal government and the citizens. They’re the ones who have to pay. And as far as Massachusetts is concerned, again, bringing up to a case that they won, that was their own coastline. And that’s not money. That’s the physical territory belonging to Massachusetts. And, of course, they have standing to protect that.

On the driver’s license questioning, Chief Justice Roberts did pepper Solicitor General Verrilli with a lot of tough questions. But, that too, is what you’d expect in a case as momentous as U.S. v. Texas. With his questions, Roberts was testing the theory that for Texas to have standing to sue it would have to allege a direct, concrete injury caused to the state by DAPA and DACA+. Here Texas claims it would be injured by the costs it would incur through driver’s license issuance to the large number of undocumented immigrants who would qualify for deferred action. In response to Roberts, the Solicitor General answered that Texas’s claimed harm is self-inflicted because it could change its driver’s license eligibility and issuance structure to avoid the costs. But Roberts asked whether that choice merely put Texas in an untenable position:

CHIEF JUSTICE ROBERTS: Their argument is, we’re going to give driver’s license to people subject to deferred action. And you’re saying, okay, that’s your injury? You can take that away. And I just think that’s a real catch­-22. If — if you’re injured, you have standing. But you’re not injured because you can change your policy and not give driver’s license to these people.

And later,

…And it seems to me that’s what you’re saying here. Texas says, our injury is we have to give driver’s license here, and that costs us money. And your answer is, well, maybe you don’t have to give driver’s license. Go change the policy.

What Roberts was clearly exploring was the Republican’s claim that if Texas tried to change its law to avoid the cost of driver’s licenses to DAPA and DACA+ recipients the administration would sue the state on preemption or equal protection grounds. The Solicitor General answered that the question was hypothetical and, therefore, it’s impossible to know exactly how Texas would change its law and whether the state would do so in a way that was constitutional. Later, Roberts’ hypothetical question was cogently answered by Thomas A. Saenz, the attorney for intervenors MALDEF:

I think it would be, in candor, subject to a challenge that would revolve around the circumstances and the reasoning behind that new legislation. It’s important, of course, to note that Texas has not done that. And there’s no indication that its legislative process would result in determining that its previous decision that subsidized licenses make sense without limit has some endpoint. The circumstance that you’ve described where it specifically targets one set of deferred action recipients would certainly raise questions.

While the media and some commentators have seized on Roberts’ line of questioning about Texas’s alleged injury as a sign that the Chief has bought into the Republican’s claim to standing, I don’t read it that way. An equally plausible explanation is that Roberts was doing what he’s done in other major cases — such as the challenge to the Affordable Care Act — asking tough questions which do not telegraph what he’ll later decide, but merely serve to tease out counsel’s argument.

In fact, it’s just as likely, perhaps even more likely, that through his questioning on standing, Roberts was merely laying the groundwork to say later that any claimed financial harm to Texas as a result of DAPA and DACA+ is indirect and speculative and does not rise to the concrete and particularized harm necessary to show standing. This was evident from an exchange he had later in the argument with Saenz:

CHIEF JUSTICE ROBERTS: Isn’t…losing money the classic case for standing?
MR. SAENZ: It’s a classic case for a private individual, Your Honor, but here, we’re talking about a State that has made a decision, as States often do, to spend money by subsidizing licenses because it’s balanced other considerations, including ­­
CHIEF JUSTICE ROBERTS: We said in Massachusetts against EPA that we have a special solicitude for the claims of the States.
MR. SAENZ: Yes. In that case, it was not a financial claim. As you know, Your Honor, it was a claim related to the State’s quasi-sovereign interest over land. In addition, as General Verrilli has indicated, there was a procedural right within the Clean Air Act that does not exist here. Indeed, if a procedural right were to be established under the APA itself, there is no limit to the number of States that could come forward to challenge any domestic policy of any kind by this or any future Administration.

Roberts did not challenge Saenz on that point. Nor did he express concern that the alleged injury to Texas was direct, which is a requirement for standing.

The oral argument continued to lay bare that as this litigation has progressed the Republicans have been forced to move the legal goal posts to maintain a semblance of a legal claim. As Professor Anil Kalhan noted today in a post, when they first filed the case the Republicans argued that DAPA and DACA+ violated the Take Care Clause by allowing an estimated 4 million undocumented immigrants to stay in the U.S. But, as the Solicitor General pointed out in his opening argument, Congress has required the President to set enforcement priorities and only appropriated enough money to remove a fraction of the 11 million undocumented immigrants. So along the way the Republicans have been forced to admit that it’s well within the president’s authority to temporarily forbear the deportation of millions of undocumented immigrants. In fact, during his argument Texas Solicitor General Scott Keller had to concede, albeit with obvious reluctance, that categorical grants of deferred action to large numbers of undocumented immigrants is solidly legal.

JUSTICE KAGAN: So that’s what I asked originally. If they were simply forbearing from removal, and there was not work authorization attached to it, and there was not Social Security or any other benefits attached to it, are you conceding that?
MR. KELLER: In this case, given that they are removing 400,000 people a year, we admit that they could do forbearance from removal. But what they can’t do is grant authorization to be in the country.

So the argument exposed what this case is really about — what the Republicans really oppose is not deferred action — granted individually or categorically — but allowing undocumented parents and DREAMers with longstanding ties to the country the ability to work lawfully to support themselves and their families. This drew fierce questioning from Justice Kagan:

JUSTICE KAGAN: Okay. So if that’s right, then it seems to me your real gripe here ­ — and you — ­­maybe it’s a real gripe ­ — your real gripe here is to the work authorization piece and to the benefits pieces; is that right?

Keller responded — as he did in the Texas brief — by attempting to mislead the Court with the notion that somehow DAPA and DACA+ bestowed “lawful presence” on an undocumented immigrant in violation of the law. This was a brazen attempt to perpetuate the confusion — initially created by Judge Andrew Hanen — about what the immigration law says and, specifically, between the concept of “lawful status” and “lawful presence.” As American Immigration Council Executive Director Beth Werlin explains in a new post and as I’ve explained in a previous post, “lawful status” refers to formal immigrant, nonimmigrant (temporary visa classification) or parole status. “Lawful presence” derives from Hanen’s legally sloppy reference to undocumented noncitizens who are in a period of stay authorized by the Department of Homeland Security — a concept that pre-dates DAPA, DACA+ and DACA 2012.

The exchange prompted a question from Justice Samuel Alito, who asked whether the term “lawful presence” appeared in the immigration law. Keller responded by citing provisions where it could be found as a descriptive term but, significantly, was unable to demonstrate that “lawful presence” exists as a legal concept in the sense that he was arguing it did. Justice Kagan, continued to hammer away at the fact that Texas’s real beef was that DAPA and DACA+, like all deferred action, enabled recipients to apply for temporary employment authorization. She then suggested that if that’s the case, Texas shouldn’t be suing to block DAPA and DACA+, they should be challenging the employment authorization regulation which has been on the books for decades and exists separate and apart from DAPA and DACA+:

JUSTICE KAGAN: But then it seems to me, General Keller, that your ­ — that what you should be attacking is not DAPA. What you should be attacking is the work authorization regulations that the DHS, or before that the INA, has had for 30 years. Or you should be attacking other connections that DHS is making with respect to these people, but not DAPA itself.

Predictably, Keller responded by attempting to confuse:

MR. KELLER: But Justice Kagan, I think it is DAPA itself that we’re challenging. And the reason why is because that is what is transforming unlawful conduct into authorized lawful conduct.

Which prompted Justice Ruth Bader Ginsburg to correctly point out that the DAPA guidance says nothing about employment authorization:

JUSTICE GINSBURG: Where does it say that in DAPA? We have the DAPA directive. I didn’t see anything in it about work authorization or about Social Security.

Importantly, Justices Kagan and Ginsburg were not alone in questioning whether the Republican’s objection to permitting DAPA and DACA+ recipients work legally was misplaced in this lawsuit. Justice Anthony Kennedy — considered by many to be a critical swing vote — asked Erin Murphy, the Attorney for the House Republicans, whether their challenge to work authorization should have been brought under the APA:

JUSTICE KENNEDY: Why wouldn’t the appropriate way for Texas to proceed have been to challenge the regulation under the APA ­­ I think it’s Section 553 ­­ and then if there were concern about notice­ and­ comment taking too long, asking for a preliminary injunction?
MS. MURPHY: I ­­ I don’t think that’s the way that it actually makes sense for this to proceed, because there’s nothing inherently problematic about a regulation that ties deferred ­action status to work authorization. Congress has passed multiple statutes ­­
JUSTICE KENNEDY: Well, but the point — the point of the suit, I guess ­­ I’m not going to tell people how to design their suit ­ — the point of the suit would be the ­ — the areas of discretion have been so vastly changed that the regulation now ­­has been superseded.

Importantly, during the 90 minutes of oral argument before the Supreme Court, most of the questioning — particularly from Chief Justice Roberts — focused on whether Texas has standing. That suggests that the Chief who — as I have noted in previous posts — has a rigorous view of standing, may be more focused on whether Texas even has the right to be in court. Nor should the Republicans take comfort in Justice Kennedy’s tough questioning of the U.S. Solicitor General. As we learned from Arizona v. U.S., where he wrote the majority opinion gutting Arizona’s S.B. 1070 “show me your papers law”, Kennedy’s skepticism during oral argument is not a reliable indicator of how he will rule in a case.

What we’re left with in the aftermath of oral argument before the Supreme Court is this: the Republicans concede that President Obama is well within his authority to issue the DAPA and DACA+ guidance granting undocumented parents and DREAMers a temporary reprieve from deportation; the Republicans’ real objection is allowing deferred action recipients the right to work legally during the reprieve; and the work authorization provision the Republicans attack is well settled law which was on the books nearly two decades before President Obama took office.

What the Supreme Court Justices are left with is a political dispute masquerading as a legal claim. In his dissent in Massachusetts v EPA, Roberts asserted his long-held views on standing, “The constitutional role of the courts, however, is to decide concrete cases — not to serve as a convenient forum for policy debates.”

On Friday, the justices will hold their conference and cast their votes in U.S. v. Texas. If Chief Justice Roberts truly believes the federal courts should be limited to resolving actual legal cases and controversies and not political disputes, his most difficult decision will be whether or not to write the majority opinion upholding the President’s immigration executive actions himself. Until then, we will hear a lot of speculation and punditry, but the reality is that we will not know with certainty what the Court has decided until the decision is issued, likely in June.