Preventing Supreme Chaos: It’s Up To The Chief

David Leopold
11 min readApr 7, 2016


Image via Flickr (islespunkfan)

En español aquí

Given that the Republican plaintiffs fail to demonstrate standing, the U.S. Supreme Court should dismiss the overtly political lawsuit brought by Republican leaders from Texas and 25 other states when it hears the United States v Texas immigration executive action case on April 18. While remaining confident that the Republican challengers will fail on standing (and would fail on the merits of the case, as well), it is worth exploring the potential consequences and chaos that would result from an alternate scenario.

A 4–4 split in U.S. v Texas, for example, would result in three levels of profound chaos ensuing. A 4–4 split on the Supreme Court would: provide a green light to Republican-controlled states — not the federal government — to determine the nation’s immigration enforcement policy — contradicting the Court’s major precedent in the process; open the door to a myriad of politically-charged lawsuits that states would be newly empowered to bring against sitting presidents; and raise questions about whether the injunction placed on the deportation deferral guidance, known as DAPA and DACA+, should continue to apply across country, ultimately leading to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S.

Since the death of the late Justice Antonin Scalia — and the refusal of Senate Republicans to even consider hearings for his replacement — there’s been a lot of discussion about what the vacancy holds for key cases before the Court. Thus far, the Court has evenly split among the justices 4–4 on two cases, leaving the decision of the lower court intact in Freidrichs v. California Teachers Association, by simply stating, “The judgment is affirmed by an equally divided Court.”

Justice Elena Kagan spoke recently at the New York University Law School about the situation of the Supreme Court in the aftermath of Justice Scalia’s sudden death. According to a report in the New York Times, Kagan said she and her colleagues “were committed to issuing decisions in as many of those cases as possible.” The justice spoke highly of the efforts of Chief Justice Roberts, saying, “I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now,” Kagan said. “He’s conveyed that in both his words and his deeds.”

On April 18, the Supreme Court will provide another test for Chief Justice Roberts and the associate justices when they hear arguments in United States v. Texas. If Chief Justice Roberts stands by his long-held rigorous views on standing, the case should be dismissed, because it asks the Court to weigh in on a political dispute, not a legal claim.

Frankly, if there ever was a political question before the Court, it’s this case, as numerous legal analysts and law professors have pointed out. But, if the Court evenly divides 4–4 among the eight sitting justices, the decision of the lower courts will remain in place — as it did in the Friedrichs case — with a profound impact on the nation.

One can imagine three levels of chaos ensuing:

First, by affirming the hold on DAPA and DACA+ through indecision, the Supreme Court will have permitted Republican controlled states — not the federal government — to determine the nation’s immigration enforcement policy. This would flatly contradict the Court’s major precedent decisions, including U.S. v. Arizona. In Arizona, the Court, speaking through Justice Anthony Kennedy, made clear that the federal government, not the states, are constitutionally vested with the authority to set immigration policy:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Stephen Legomsky, Professor Emeritus at Washington University School of Law and former Chief Counsel of U.S. Citizenship and Immigration Service, wrote in a post titled, Supreme Court Immigration Case Will Have Profound Impact that:

It is that combination — a lax threshold for state standing to sue the federal government and the states’ freedom to choose a friendly judicial forum for deciding both standing and the merits of the case — that makes Texas’s theory so dangerous.

Second, a split decision by the Court would have adverse ramifications well beyond immigration enforcement policy. One can only imagine the myriad of politically charged lawsuits states will be newly empowered to bring against the political decisions of a sitting president — Republican or Democrat — including challenges to his or her tax, environmental and foreign policies.

As former Solicitor General Walter Dellinger explained to the Supreme Court in an amicus brief filed in opposition to the Texas Republican challenge to DAPA and DACA+:

The dispute accordingly presents only “questions and issues” (Winn, 563 U.S. at 132) that must be left to the political process.

To [fail to dismiss the case on standing] would not only inject the Court into this political maelstrom, but also the next one, and the next. For the theory of standing advanced by respondents here would not be good for this case only. If adopted, it would open wide a back door to federal court for States seeking resolution of a host of politically charged disputes where the front door to individual plaintiffs has been barred by this Court’s precedents. Respondents’ novel theory of APA review would likewise place the courts in a supervisory status over a wide range of discretionary executive decisions, without any meaningful standards for evaluating them.


Respondents’ theory of standing would not only provide a basis for States to challenge myriad federal immigration decisions, see Pet. Br. 31, but it would also provide a ready work-around in many other cases where courts have found that individual plaintiffs lacked standing. By following the path laid out by respondents here, States could effectively step into those individual plaintiffs’ shoes and litigate policy disputes with the federal government. That would turn standing doctrine on its head.

Allowing U.S. v Texas to remain in the federal courts would allow Republican Governors and Attorneys General of 26 states to undermine the federal government’s “significant power to regulate immigration” of which Kennedy wrote. Political questions would become fodder for the courts, not the legislatures where they belong.

Again, Legomsky:

All this transcends immigration. Every time the IRS interprets the tax code in a way that favors the taxpayer, any state that chooses to base its own income tax on federal taxable income loses revenue. The state could avoid that result by changing its law, but under Texas’s theory that doesn’t matter… Accepting Texas’s radical theory of standing would be a recipe for paralysis. No one state should be empowered to thwart the federal government’s nationwide policy decisions so easily. And that is why the consequences of the Court’s final disposition will be so profound.

At The New Republic, Spencer Amdur made a similar point:

To contest a government policy in court, plaintiffs must show an “injury in fact,” which means that they are personally harmed by the policy; it is not enough to simply disapprove from a distance. This requirement is known as “standing.” In the DAPA lawsuit, both lower courts ruled that Texas had standing, but they relied on a curious theory: Because Texas subsidizes driver’s licenses for immigrants with deferred action, it will now have more licenses to subsidize. The problem with that logic is that it would allow any state to create standing, simply by tying its laws to federal policy.

The standing question is crucial for a few reasons. It’s one that is likely to appeal to the Court’s conservatives, who generally favor tighter standing requirements. It would also save the Court from having to sort through some knotty issues of administrative and constitutional law. More broadly, a generous ruling in favor of state standing could exacerbate the dysfunction that has plagued the immigration system in recent years. If Texas has standing in this case, then states might have standing to challenge almost any policy that loosens enforcement, or gives someone lawful status. (See, for example, Texas’s lawsuit to block Syrian refugees.)

At SCOTUSblog, Kevin Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at U.C. Davis School of Law, offered a similar analysis:

If the Court finds that Texas has standing to challenge DAPA, one could also anticipate efforts by the states for partisan political reasons to employ lawsuits in the federal court to interfere with the executive branch in its discretionary judgments about how to enforce a myriad of laws — from the Internal Revenue Code to the environmental laws — passed by Congress.

And, that would, of course, result in countless lawsuits that would never have been filed or considered otherwise.

Finally, indecision by the Supreme Court would raise legitimate questions about whether the injunction placed on DAPA and DACA+ by Judge Hanen should continue to apply across country. No doubt there would be challenges by states such as California and Washington, which have refused to join the Republican lawsuit against Mr. Obama’s immigration executive action and persuasively argued that they’ve been harmed by the hold placed on DAPA and DACA+; no doubt federal courts outside the 5th circuit would be prevailed upon to lift Hanen’s injunction so the president’s temporary deportation deferral could move forward in other jurisdictions; and no doubt a 4–4 split by the Supreme Court would lead to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S. — a situation the Supreme Court wisely prevented through its Arizona decision.

Noah Feldman, professor of constitutional and international law at Harvard University, outlined the legal questions which would arise in the aftermath an evenly divided Supreme Court in the Republicans’ Texas lawsuit:

The 5th Circuit opinion won’t be binding precedent on other courts or future presidents. The long-term effect on executive action relating to immigration won’t be significant.

In practice, Obama’s plan might not be implemented. But even that’s not absolutely certain, at least outside Texas. It was very unusual for the 5th Circuit to issue an injunction binding the Obama administration nationally.

There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself — votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.

That “legitimate technical question” would immediately be the subject of numerous lawsuits in states outside of the Fifth Circuit. In fact, many governors and attorneys general, have tried repeatedly to allow implementation of DAPA in their states, citing the economic value. At SCOTUSblog, Anne Egeler, Deputy Solicitor General for the State of Washington, wrote,

The nationwide injunction is preventing the states and their residents from receiving the substantial economic, public safety, and humanitarian benefits that will flow from the president’s immigration actions.

In its amicus brief, the State of California made a powerful case about the harm done to the state by blocking DAPA:

As a result, California’s economic growth has depended to a significant degree on undocumented workers. California’s agriculture and extraction industries employ 3.6 immigrants for every one native worker, compared to a national industry average of 1.5 immigrants per native worker.17 Undocumented immigrants, representing just 7% of the State’s population, make up 34% of its farm workers, 22% of its production workers, and 21% of its construction workers according to one estimate. Other estimates place these figures even higher: the proportion of California farm workers who are undocumented, for instance, may be closer to 60%. Today, the undocumented workforce alone contributes $130 billion to California’s gross domestic product (GDP) — an amount larger than the entire respective GDPs of 19 other States.

That alone would likely compel California to seek redress if the injunction is limited to the Fifth Circuit because of an evenly split Supreme Court.

At Think Progress, Justice Editor Ian Millhiser surmised what could follow:

In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4–4 in the Texas case, the Fifth Circuit’s order will stand.

Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.

Needless to say, things could get complicated. No doubt the legitimacy of Hanen’s “national injunction” would be challenged by governors and attorneys general, along with immigrant advocates, who will head to federal courts to allow implementation of DAPA. In Writing at Across the Bar, a publication of the San Joaquin County (CA) Bar Association, attorney Fernanda Pereira summed up the confusion that would unfold in the aftermath of a 4–4 split decision by the Supreme Court:

Critically, any opinion issued by the Supreme Court would not be precedent-setting; rather, the Fifth Circuit’s order will stand, but only be binding precedent in the Fifth Circuit — Louisiana, Mississippi, and Texas. If that happens, the Justice Department may obtain an order from a different circuit upholding the President’s authority to implement DAPA and DACA. The Fifth Circuit is among the most conservative courts in the country and it is unlikely that every circuit will follow its lead. There will be competing court orders holding DAPA and DACA both legal and illegal, and no immediate possibility of Supreme Court review. It is not immediately clear what happens in such a case.

Pereira also explained the potential human cost:

If the Court’s decision is split 4–4, that would have tremendous consequences for people facing deportation. Immigrants would be treated differently under the law because of where they reside, meaning that established families (which include U.S. citizen spouses and children) will be forced to choose to relocate to jurisdictions that will grant them access to the DAPA and expanded DACA deferred action programs, or fracture.

If Texas is granted standing, that’s the immediate future. It will upend the lives of immigrants across the country and cause a rush to the courts — by states who want to challenge federal actions beyond immigration and by advocates, states and cities who want DAPA implemented in their jurisdictions.

From all indications, chaos is anathema to Chief Justice Roberts. As USA Today’s Richard Wolf noted,

Over the years, the chief justice has consistently voted to close the courthouse doors on claims and claimants he judged to be dubious.

The dubious lawsuit brought by the 26 Republican governors and attorneys general is perhaps the most important test for Roberts in this term.

A 4–4 tie in U.S. v. Texas, a blatantly political lawsuit, guarantees at least three levels of judicial chaos. Whether or not that happens rests with Chief Justice and the rest of the Supreme Court.



David Leopold

Chair, #Immigration Law, Ulmer & Berne LLP, litigator, bylines @USAToday, @CNNOpinion, @msnbc @thehill @tpm @huffpost @HoustonChron, fmr pres @AILANational